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The relationship between sports and social activism
TIMOTHY L. EPSTEIN
Law Bulletin columnist
Published: January 26, 2015
Athletes including LeBron James, Derrick Rose and Kobe Bryant have recently participated in pregame warm-ups in T-shirts with text reading “I Can’t Breathe.” The gesture came after a New York City grand jury decided to not indict the police officer most directly involved with the July death of Staten Island resident Eric Garner.
The public expression from professional athletes has sparked conversations on the relationship between free speech and social activism within sports.
Professional sports leagues feature collective bargaining agreements that enlist strict uniform requirements that preserve enormous sponsorship deals the leagues have with apparel providers. However, given the national salience of the grand jury decision and the resultant social activism, it is not surprising that leagues have forgone the opportunity to take disciplinary action against players’ subsequent public expression.
Article XXXVII, Section 3 of the National Basketball Association CBA dictates that players are required to only wear articles of their official uniform during any NBA game, which includes warm-up periods. The NBA bylaw also prohibits players from displaying any commercial, promotional or charitable message that is not incorporated within the team uniform.
Because the “I Can’t Breathe” T-shirts are not a part of the team uniforms as supplied by the NBA’s current apparel provider, Adidas, the NBA has the ability to discipline players for violation of the CBA.
NBA Commissioner Adam Silver has so far refused to assert this power. In a public statement, Silver noted that he respects the players for their personal expression, even if he would prefer that they follow the CBA requirements. NFL Commissioner Roger Goodell has similarly abstained from exacting punishment for players violating the NFL’s uniform rules.
Even though multiple commissioners have opted to not discipline players engaged in this form of silent expression, public debate has questioned the place for freedom of speech rights within athletics. Representatives of professional sports leagues typically respond by emphasizing the hundreds of millions of dollars that apparel companies invest with the contractual promise that their clothing and equipment will be featured throughout competitions.
League representatives also raise the concern that there is no clear line of demarcation for future expressive conduct related to social issues. Silver and Goodell have passed on meting out punishment under the current circumstances, but they have not expressed intent for the situation to form precedent.
Conversely, supporters of enhanced social activism in athletics point to the facial hypocrisy that could befall leagues if they choose to punish acts of personal expression. For example, the NFL has used players in league-funded advertisements for causes such as domestic violence and breast cancer awareness. Proponents for athletes’ speech state that the leagues are already too tied to social issues to institute a blanket proscription of activism in sports.
Parallel to the exhibition of public messages on unsanctioned apparel, athletes have previously tested dress code requirements in spite of their league’s business operations. A prime example involves the NFL and its recently brokered partnership with Bose Corp., which made the audio equipment giant the league’s exclusive headset provider.
Among the provisions of the deal, Bose retained the right to ask the league to keep its players from wearing any other brand of headphones. The NFL has publicly acknowledged that such a stipulation is within the league’s long-standing policies to protect its sponsors.
The NFL-Bose partnership garnered significant media attention because many NFL players had become partial to headphones made by Bose rival Beats by Dre. Because the NFL rulebook restricts players from wearing non-licensed equipment until 90 minutes after a game, the league chose to fine San Francisco 49ers quarterback Colin Kaepernick $10,000 for wearing Beats headphones during a post-game interview.
The NFL headphone situation failed to incite public conversation similar to the “I Can’t Breathe” T-shirts, largely because it involved common operating practices of corporate entities. While people may prefer a particular brand of headphones, they are not likely to engage in social activism on behalf of an electronics manufacturer.
Moving beyond the professional realm, college and high school athletes have also participated in the recent expressive conduct. Scholastic athletics are different from their professional counterparts because the athletes are not beholden to a CBA. However, there are other concerns, including whether these events are proper venues to project messages of personal expression.
Basketball players at Georgetown University were among the first in the collegiate ranks to don the “I Can’t Breathe” T-shirts. Georgetown coach John Thompson III revealed that he initiated a dialogue with his players before they collectively decided to wear the shirts for warm-ups.
Thompson expressed that his involvement in the process reflected the fact that Georgetown is an educational institution designed for teaching and learning. In an acknowledgment of the boundaries of social activism, Thompson stated, “I doubt we’ll be doing a silent protest every time the wind blows.”
On the high school level, a recent controversy was sparked when a Northern California basketball tournament denied entry of a high school’s boys and girls teams because the players would likely wear “I Can’t Breathe” T-shirts. The revocation of the invitation was apparently driven by the necessity to exclude political statements and protests for “the safety and well-being of all tournament participants.”
The boys team was eventually allowed re-entry into the tournament after almost all of the players agreed not to wear the T-shirt. The girls team, however, chose not to participate. Opponents of the ban have cited Tinker v. Des Moines as Supreme Court precedent in favor of the high school athletes’ First Amendment rights. Under threat of legal action, tournament officials relented and allowed the shirts to be worn.
Traditionally, the NBA and NFL have not been hesitant to discipline players for violating CBA provisions governing league-sanctioned apparel. Therefore, the passive responses from Silver and Goodell are significant. Regardless of their reasoning, they decided it was better to allow the conduct to reasonably persist than to play disciplinarian.
Moving forward, the commissioners will attempt to carefully navigate between players’ personal wishes and their leagues’ corporate obligations.
Timothy L. Epstein is a partner and chairman of the sports law practice group at SmithAmundsen LLC. He also serves as an adjunct professor at Loyola University Chicago School of Law, teaching courses in sports law. His sports law practice is all-encompassing, but focuses on the litigation needs of players, coaches, teams and schools. He can be reached at tepstein@salawus.com.