Team protest cases are labor law, not free speech
In spring 2016, Terri Carmichael Jackson was named director of operations for the Women’s National Basketball Players Association. She recalled the time as a bumpy introduction to the job of leading the WNBA players’ union during a panel titled “The Right (or Not) to Take a Knee: Social Activism and Freedom of Speech in Sports” at the ABA Annual Meeting.
Sparked by police shootings of unarmed black men and the killings of police officers around the country, the players Jackson represented wanted to make a statement. “They understood the power of their voice and the power of consensus,” she said. “And that’s really important and cannot be underestimated in a union setting.”
Specifically, her players wanted to wear T-shirts to demonstrate concern and solidarity against the violence. But to do so was a clear violation of the league’s uniform rules.
Even so, many players wore shirts that read “#BlackLivesMatter #Dallas5”—the latter a reference to five Dallas police officers killed in 2016—and “Change Starts with Us.” The players were fined $500 each before public outcry led the league to rescind the fines, according to a 2016 NPR story.
Jackson said this all happened within her first 90 days on the job. “Nobody could have prepared me for that,” she said.
As player protests and league responses continue to make headlines, the panel at the annual meeting made clear where in the legal realm these issues fall.
“We’re largely in the federal labor area, not federal constitutional law,” said Matthew Mitten, a professor at Marquette University Law School.
Cari Grieb, a partner at Chapman and Cutler in Chicago, and Mitten said some argue that President Donald Trump’s direct communication with NFL team owners, public subsidies for teams and the interpretation of stadiums as public forums may trigger First Amendment protections.
However, Grieb called these arguments flimsy.
“The NFL is a private employer; they aren’t a state actor,” she said in reference to the First Amendment’s prohibition on the state to infringe on freedom of expression. “I don’t think First Amendment claims are going to hold up in court.”
While the appropriate forums for political statements are debated and litigated, the panel agreed that athletes’ demonstrations will continue over the next decade.
“I’m just so proud that we are in a space and time where folks are more engaged,” Jackson said.