• Ellakisha S. OKelley, Esq.

Pro Athletes and First Amendment Rights: Respect Versus Rights

The practice of Sports and Entertainment Law is not considered one specific area of law. It is a practice that combines multitude areas of law in a unique fashion. To be an effective sports and entertainment attorney, one should have a general knowledge of all areas of law. So naturally, among those areas of law is constitutional law.

As an attorney who represents athletes and entertainers, I have been asked about my thoughts regarding current issues involving peaceful protest in athletics. I spoke on this issue with a sports panel I moderated titled Shut Up and Play or Pay. For me to address my full thoughts on this issue right now would be extremely lengthy. Therefore, I will keep it succinct and concise, and summarize dialogue I have with my clients to empower them when considering this topic. This is not legal advice for the public reading this comment, it is a general overview of a conversation I would have with those I work with when needed.

So here I go.

A popular statement often thrown around is, “I have my First Amendment Right.” The idea of having this specific right has become so cliché and misunderstood. More times than not, individuals who raise this argument as a threat of action against anyone who is opposed to their voice, or lack thereof, have not taken the necessary steps to truly understand what rights are afforded and protected under this applicable amendment.

I make sure that my clients understand exactly what the First Amendment is. It addresses freedom of expression/exercise (religion), freedom of the press, as well as freedom of speech. When making a statement about having a First Amendment right, one must know what that right consists of and when that protection is implicated.

In reading the First Amendment, it provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech…” What does this mean when raising the issue of a constitutional violation of this amendment?

Let’s start with the first sentence. “Congress shall make no law…” Analyzing this prohibition allows one to understand who can, or cannot, be considered a violator of a citizen’s constitutional right of the First Amendment. The sentence starts off with “Congress,” a federal government actor, not a private entity. This protection was originally applicable to the Federal Government, but the Fourteenth Amendment of the constitution has extended this protection to State actors. To reiterate, the constitutional right afforded by the First Amendment is meant to protect a U.S. Citizen from actors that is either federal or state, not private actors. There are two exceptions that will extend this protection beyond governmental action, but they are not worthy to note for the main focus of the points I raise here.

Now, to take it a step further, not only does this right apply to certain actors, there is also speech that is not constitutionally protected even if one of these actors were in question. Yes, you read that right. Freedom of speech is not as free as so many may think it is. Examples of some speech that is not protected by the constitution are: speech that advocates violence; speech that incites fighting; hostile audience speech; speech that is obscene; and speech that is defamatory. So, this notion that people can say what they want when they want is very misleading, misunderstood, and abused.

Back to the point.

There are three basic questions that an athlete must answer in the affirmative to successfully have a claim for a violation of their freedom of speech. 1. Was there government action? 2. Was there a violation of their First Amendment protection? 3. Does the person raising this claim have standing (a right)?

So, let’s get to what most people are referring to when asking me this question. Do athletes have a right to free speech while working for a certain organization or entity? From the information discussed thus far, we know the first question that must be asked is if the employer is a government entity. If the answer is in the negative, then generally the athlete will not have the protection of free speech in a court of law. Now, should an employer respect the freedom of peaceful protest, arguably yes. But respect and right are two different issues to discuss when dealing with this problem.

When considering the current issues, we do not make it past question 1 to even answer question 2 or 3. Remember, for the constitutional protection to be triggered, the alleged wrongdoer must carry a badge of authority that defines it as a governmental actor. Traditionally, and legally, professional sports leagues are considered private entities. Consequently, professional sports leagues- which is the focus of this article- are free to establish and enforce their own governing rules, subject to restraints of private association law. These rules are embodied in their league constitutions and are enforced on an athlete through contracts or collective bargaining agreements (CBA).

Throughout history, there have been many athletes who have charged professional leagues for alleged violation of their First Amendment right. Whether it was for freedom of expression or speech, there was lack of success in either raising or winning a claim in a court of law. Muhammad Ali refused to enlist in the service as an expression of his beliefs, and the NY State Athletic Commission and all other US Jurisdictions suspended his license as a result. [1] He was also stripped of his World Heavy Weight Title. He unsuccessfully filed one claim after another. He eventually was successful in winning his case and gained back all that he had lost based on a private association argument, not a First Amendment right. In other words, he did not have constitutional protection, but he did have legal protection against arbitrary and capricious treatment under this specific law.

So now what?

While courts are reluctant to extend sports leagues employees constitutional protection, there are no legal barriers for leagues to take matters into their own hand. As I mentioned previously, contracts and CBA’s are what binds athletes. I have long conversations about contracts and expectations with my clients. If I have a client that does not want to be muted regarding their passions, or expressions, I strongly suggest having this conversation on the front end with the entity they are signing a contract with, before signing the dotted line. It is important to understand where both parties stand on limitations.

As a former professional athlete, I am personally supportive of athletes using their platform to effectuate change. However, my personal feelings do not get in the way of either my legal duty to have my client’s best interest in mind, or my self-imposed obligation to empower my clients with knowledge. I do believe my clients bring just as much value to organizations as they are receiving from them. But they must understand how to properly think and deal with such issues.

There was a recent article released about a possible lawsuit that is going to be initiated by a local union in Texas based on an argument of a National Labor Relations Act of 1935 violation by the Dallas Cowboys and the NFL. [2] This act does cover employees in the private sector. However, this act is used to protect employees who want to join together (concerted activity) to improve their wages and working conditions. Improving wages is not a concern in this claim. So, the question is, will peaceful protest about activity taking place outside of the workplace be considered bad working conditions if not allowed? Generally, the type of arguments raised under this act regarding working conditions applies to issues of improving employees working conditions or related to safety concerns. If the Union has a plausible argument that the concerted action of these athletes is a protest of their working conditions and the Cowboys and NFL are retaliating as a result, then they may have their day in court. Otherwise, the claim will be considered without merit.

I do believe athletes should exercise and recognize their power, and I feel that the ‘keep politics out of sports’ argument is devoid of basic knowledge of sports history; but respect and right are two different issues to discuss when dealing with this problem. So when I am asked about how I feel about First Amendment rights and athletes in professional sports leagues, I have a totally different response from a personal view of respect compared to how my conversations begins and ends with athletes that I am advising about their rights.

1. Ali v. State Athletic Comm'n of N. Y., 316 F. Supp. 1246, 1247 (S.D.N.Y. 1970)


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