August 04, 2018

Taking knees and wearing t-shirts: Panelists talk sports activism and free speech

Terri Carmichael Jackson was just three months into her new job leading the women’s basketball players union when her phone began ringing like crazy. It was bad news: The league was fining many of her 144 players for wearing unauthorized T-shirts during warmups.

And not just any T-shirts. These shirts offered support for Black Lives Matter and for the families of five Dallas police officers killed in a July 2016 ambush.

“I get a copy via email of every fine letter” from the league, said Jackson, operations director of the Women’s National Basketball Players Association. “So imagine what your phone feels like vibrating that many times. I laugh at it now, but it really wasn’t funny because my players don’t make a lot,” and the fines were $500 each.

Jackson told her story Aug. 3 at a panel discussion at the ABA Annual Meeting in Chicago titled “Take a Knee… or Shut Up and Dribble? Managing Social Activism and Freedom of Speech in Sports.”

Panelists discussed NFL players taking a knee during the national anthem, WNBA players taking a stand with unauthorized T-shirts, and Serena and Venus Williams changing tennis by pushing equal pay for women.

“It has been the most consequential year on record, arguably in a generation, for sports in society,” said the panel’s moderator, ESPN reporter Michele Steele.

While the path forward is unpredictable – especially legally – the four panelists tried to foresee where courts and society might be heading.

In May, the National Football League issued a new rule that requires players to stand on the field during the national anthem or remain in the locker room. The league imposed the rule without consulting with the players union. Violators can be fined or suspended.

Critics say the policy violates the players’ free speech rights, but panelist Cari Grieb, a partner with Chapman and Cutler in Chicago who teaches sports law at Northwestern University, said the First Amendment only applies to government actions, not those of private businesses like the NFL.

Some critics argue that NFL teams should be treated as government entities because they receive government subsidies. Others say that because President Donald Trump spoke to the team owners about the issue, they have become an arm of the state, so First Amendment restrictions should apply.

“That’s a really flimsy argument,” Grieb said. “At the end of the day, the NFL is really a private employer, so I don’t really think First Amendment claims here are going to hold up in court.”

Ultimately, Grieb predicted, the issue could be decided under labor laws. “Discipline has been held by the courts to be a mandatory subject of bargaining,” she said.

The NFL policy and others like it might be challenged in state courts, said panelist Matthew Mitten, executive director of the National Sports Law Institute at Marquette University. “There may be some states where the fact that the game is being played in what is considered to be a public forum, so there might be some state laws that would be applicable,” he said. But ultimately, he agreed with Grieb: “We’re in the federal labor area, not federal constitutional area.”

In the case of the WNBA, the league ultimately backed down, revoked the fines and issued a statement supporting the players. "All of us at the WNBA have the utmost respect and appreciation for our players expressing themselves on matters important to them," WNBA President Lisa Borders said. “While we expect players to comply with league rules and uniform guidelines, we also understand their desire to use their platform to address important societal issues."

Now, WNBA players are becoming active in other political arenas. They are partnering with Rock the Vote to boost voter participation and “they are doing things in the criminal justice reform space,” Jackson said. “They have thoughts and opinions and are looking to do things in immigration policy… They are so smart and they are so thoughtful.”

Pay equity is also an important issue for WNBA players, Jackson said: “The work that Serena Williams and Venus Williams have done in their sport, I pray that it trickles down and wraps around my sport, in basketball, particularly around pay issues and equity issues and notions of fairness.”

The program was co-sponsored by the ABA Forum on the Entertainment and Sports Industries, the ABA Forum on Communications Law and the ABA Section of Civil Rights and Social Justice.