Are Athletes’ Speech Rights being Threatened?
The January meeting of the Nevada State Athletic Commission received significantly more press coverage than the commission’s other regular meetings.1 The docket included proposed settlements regarding Conor McGregor and Khabib Nurmagomedov and their actions post-fight on the night of UFC 229.2 It also addressed the issue of Jon Jones and his license, due to his recent positive drug test results.3 During the discussion regarding the UFC 229 incident, the commission’s executive director, Bob Bennett, began a conversation about the “trash talk” that occurred in the leadup to the event, and expressed his dissatisfaction with the language being used.4 The commission’s chairman, Anthony Marnell, furthered this idea, stating, “The verbal part of the promotion, in my opinion, has gotten so out of line that it’s embarrassing.”5 He later commented that the commission would look into the extent to which it could sanction fighters for their verbal contributions to the promotion that the commission deemed inappropriate.6 Almost immediately, the constitutionality of this act was questioned, although Marnell admitted that he had not thought that far into his idea7, and that a brief analysis would point to the athletic commission being a government entity and unable to regulate speech as such. However, this is simply the most recent example of athletes’ speech being threatened by entities controlling their particular sport.
The First Amendment rights of athletes has recently been highly debated issue during the kneeling phenomenon in the NFL. President Trump decided to chime in on the ongoing issue, essentially shifting the presumed message to being disrespectful to the flag, stating, “Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a (expletive) off the field right now. Out. He’s fired. He’s fired!’” at a speech he gave in Alabama.8 This, along with several other comments, sparked a national debate over what the NFL would be able to control when it came to the speech of their athletes. The official league policy outlined what those involved in the game should do during the anthem, but said nothing about the conduct that is required during it (section A62 and 63).9 This controversy has died down and, to an extent, was resolved by an agreement between the players and owners for an $89 million contribution to charities of the players’ choosing.10 Prior to this resolution, the extent to which the NFL could control the players’ speech in light of the First Amendment was highly debated. The consensus was that, as a private organization, the league’s contractual agreement with its players would be controlling and could regulate conduct. However, the government (in this scenario, President Trump) pressuring the firing of employees for conduct that would be protected as free speech could be illegal.11 As a result of the NFL kneeling dispute, the action was mimicked by football players at all levels, leading to high schools warning their students about punishment for failure to stand during the anthem. As the Supreme Court ruled that high school athletic associations can qualify as state actors12, this represents government interaction and if the districts intended to enforce these warnings, it could open the schools up to liability for First Amendment violations.13
Instances of athletes in all types of sports addressing issues that are related to the First Amendment are not new. Muhammad Ali went through a tumultuous experience with the New York State Athletic Commission suspending his boxing license based on his conscientious objection to a draft order during the Vietnam War based on religious ideals. After refusing to report, the New York boxing commission—and then, such boxing commission of every other state—stripped Ali of his license, prompting Ali to file suit, challenging this revocation due to his religious beliefs, a category the First Amendment protects.14 Further, there was the Kareem Abdul-Jabbar lawsuit, that was discussed but never materialized, challenging the NBA’s gag-order rule.15 The controversial Dennis Rodman, who decided not to challenge his fine but could have had a claim against the NBA, was fined $50,000 for telling a reporter that he thought Mormons were [expletive].16 This is yet another example of the NBA imposing fines on players for their speech in situations related to the game. Aaron Smith pointed to his First Amendment rights when he was denied membership access to the University of Kentucky basketball team because he did not going through official channels to obtain said interviews.17
Though many of these instances are not challenged – or are resolved with little fanfare on either side – they indicate a troubling trend in the industry. In an era when athletes have substantially more avenues of communication, whether through social media or increased media coverage, their statements seem to be invoking some concern from their respective organizations. The First Amendment concerns vary by sport in accordance with the level of government involvement in the governance of the sport. The frequency of these challenges does seem to be increasing, and it is something in which observers should be aware.
MMAFightingonSBN, “NAC Meeting Live Stream (Jon Jones, Khabib vs. McGregor Deals)- MMA Fighting,” YouTube (Jan. 29, 2019), https://mmajunkie.com/2019/01/khabib-mcgregor-jones-nsac-hearing-live-video-stream. [https://perma.cc/EQG7-68P6]↩
Nev. St. Athletic Comm’n, Agenda at F. 3-6 (Jan. 29, 2019), http://boxing.nv.gov/uploadedFiles/boxingnvgov/content/schedule/19_Agendas/2019-01-29AG.pdf. [https://perma.cc/7T9E-F9NE]↩
See id. at F. 9.↩
Justin Park, “Nevada Fighters and the Right to Trash Talk,” Reason (Feb. 6, 2019), https://reason.com/archives/2019/02/06/nevada-fighters-and-the-right-to-trash-t. [https://perma.cc/T66L-6D43]↩
MMAWeekly Staff, “NSAC Chairman compares potential fighter trash talk-talk regulations to NFL, NBA, and MLB,” Yahoo Finance, (Feb. 27, 2019), https://finance.yahoo.com/news/nsac-chairman-compares-potential-fighter-182941092.html. [https://perma.cc/BT67-EYV3]↩
President Donald Trump, Political Rally in Huntsville, Alabama, (Sept. 22, 2017).↩
NFL Rulebook, https://operations.nfl.com/media/2646/2017-playing-rules.pdf. [https://perma.cc/3PWV-GK6Y]↩
Chase Crosby, “NFL, Some Players Reach $89 Million Deal That Could Still Include Protests,” Forbes (Nov. 30, 2017), https://www.forbes.com/sites/chasecrosby/2017/11/30/nfl-some-players-reach-89-million-deal-that-could-still-include-protests/#33ffaa311e30/.↩
Sean Illing, “Can the NFL fire players for kneeling during the anthem? – legal experts say yes.,” Vox, (Sept. 25, 2017), https://www.vox.com/culture/2017/9/25/16360580/nfl-donald-trump-national-anthem-protest. [https://perma.cc/QFA4-TEUH]↩
Brentwood Academy v. Tennessee Secondary School Athletic Assn., 531 U.S. at 288, 303-05 (holding that a wholly intrastate high-school athletic associations comprised mainly of public schools constitute a state actor under the “public entwinement” theory).↩
Mark Keierleber, “Are Student Athlete Protests Fair Game Under 1st Amendment, Or Can Schools Cry Foul? It’s ‘Murky.’ Expert Says,” the 74 Million, (Sept. 29, 2017), https://www.the74million.org/are-student-athlete-protests-fair-game-under-1st-amendment-or-can-schools-cry-foul-its-murky-expert-says/. [https://perma.cc/79QK-JXV2]↩
Ali v. State Athletic Comm’n of N.Y., 316 F. Supp. 1246 (S.D.N.Y. 1970).↩
Jonathan Falk, The Professional Athlete and the First Amendment: A Question of Judicial Intervention, 4 Hofstra L. Rev. 417 (1976).↩
See generally Mark Bechtel, “Year of the Worm: Has Any Other Player had an NBA Season as Bizarre as the One Dennis Rodman Just Went Through? Don’t be Ridiculous,” Sports Illustrated, June 25, 1997, at 36.↩
Paul Steinbach, “Athletic Departments and First Amendment Rights of Student Journalists,” Athletic Business (Oct. 2011), https://www.athleticbusiness.com/college/athletic-departments-and-first-amendment-rights-of-student-journalists.html. [https://perma.cc/KR8N-D2NL]↩