Social Activism in Sport: Arguments in Favor and in Opposition

Okpalefe O. Edevbie

U-M Sport Management, Class of 2019

ID #: 37565517

Uniqname: efe
Introduction

In the era of social media and increased visibility of athletes, sports and social activism

have become intertwined in a manner never previously seen before. The case of Colin

Kaepernick and his kneeling protest during the National Anthem has sparked fierce debate from

both the political left and right about the responsibility of leagues and teams to condemn and

restrict or support and allow this speech and expression from their employees. The debate for and

against is unlikely to ever be sufficiently resolved, but a discussion regarding the topic is an

essential one to have in this new and ever-changing landscape of professional sports. The

following paper will look to examine the issue from each differing standpoint, with law and

policy being used as a foundation and basis for argumentation on both sides.

An Argument Against Social Activism Speech and Expression in Sport

Any argument made in the United States based around the freedom of speech and

expression will ultimately boil down to the First Amendment and the protections it provides. Per

the United States Constitution, “Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the

press; or the right of the people peaceably to assemble, and to petition the Government for a

redress of grievances.1” Quite possibly the most universally known expert of U.S. constitutional

law, the First Amendment restricts the United States government from infringing upon an

American’s right to freely express and speak their mind. As private entities, however, leagues

and teams like the NFL or San Francisco 49ers are not subject to the same standards held against

1
https://www.constituteproject.org/constitution/United_States_of_America_1992
the government. As private employers, they have the autonomy to set guidelines and rules for

their own employees, especially in a workplace setting (i.e. a game). While made slightly unique

by the very public spectacle of professional sports in America, it is up to the discretion of leagues

and teams to establish and enforce conduct and speech policy.

Outside of the sporting world, the issue of freedom of expression came up in a relevant

case study with Google over the summer of 2017. A software engineer for the company released

a memo hypothesizing and asserting that the lack of women in the tech field was mainly due to

an inherent biological/psychological difference between men and women, which he claimed

made men more suited for the field2. Google promptly fired the employee, citing his action was

in violation of their Code of Conduct3. While it can be debated whether or not the employee

should have had the right to freely express his opinion, Google made their decision based on his

behavior not being in line with overall company values and ideals, as expressly outlined in their

Code of Conduct. The same concept can be applied to professional sports leagues and teams

when it pertains to their ability to restrict social activism speech and expression. Actions by

employees that deter or are not representative of a company’s vision or principles are punishable.

While the spirit of social activism in sport is to advance dialogue relating to social issues in the

country and to bring about positive change — a noble and respectable cause — teams and

leagues have the right to decide whether or not an athlete’s avenue of in-game expression is

detrimental to their business and/or even possibly antithetical to their core beliefs. When these

ideals are expressly outlined in an employment contract or a league-wide/ team-specific rulebook

2
https://gizmodo.com/exclusive-heres-the-full-10-page-anti-diversity-screed-1797564320
3
https://www.blog.google/topics/diversity/note-employees-ceo-sundar-pichai/
or operation manual (i.e. Google’s Code of Conduct), it leaves little reason or justification for

players to act outside of their team’s or league’s standards.

As written by Eugene Volokh in “Private Employees’ Speech and Political Activity:

Statutory Protection Against Employer Retaliation,” Volokh establishes that “some cases

interpreting the statutes give employers a good deal of authority to restrict speech that turns

customers against the employer4,” (p. 307), using ​Marsh v. Delta Air Lines, Inc.​ — a 1997 case

in which a Delta Air Lines employee was terminated by the company after he wrote a letter to

the editor of the Denver Post criticizing the air line and some of its employment practices (with

the court later denying his motion against Delta) — as an example. Many forms of game-related

social activism in sport alienate large fan populations, and this has been seen recently with the

unofficial boycotts of the NFL by more right-leaning and conservative fans over the anthem

kneeling controversy5. Professional sports league, driven and fueled by fan engagement, have an

inherent interest in keeping their fans happy and engaged. There is precedent within the domain

of law with ​Marsh v. Delta Air Lines, Inc. ​for companies to protect their public interests,

especially when it comes to controlling/restricting the action of their employees.

An Argument For Social Activism Speech and Expression in Sport

While it can be effectively argued that employees lack First Amendment protections in

private workplaces, as Americans, we should be weary of supporting institutions that openly and

coercively try to restrict their employees’ ability to freely express themselves. As best

summarized in “Free Speech, the Private Employee, and State Constitutions” by The Yale Law

4
http://www2.law.ucla.edu/volokh/empspeech.pdf
5
https://www.theblaze.com/news/2017/10/20/conservatives-plan-their-own-nfl-protest-in-boycotting-pro-fo
otball-on-veterans-day-weekend
Journal “democratic societies demand freedom of expression because it is essential to

participation in decision-making by all members of society, individual self-fulfillment, the

advancement of knowledge and the discovery of truth, and maintenance of proper balance

between6,” (p. 529). In order to uphold the integrity and core values of our democratic nation,

employers (pro sports teams and league) should be incredibly carefully when seeking to restrict

speech and expression by their employees, as too much restriction impedes on the progress and

freedom of society as a whole.

Using the National Anthem kneeling controversy as an example, of the four major

American professional sporting leagues (NFL, NBA, NHL, MLB), only the NBA specifically

outlines the requirement for players to stand during the National Anthem — the NFL suggests it,

and neither the NHL nor the MLB have written policy pertaining to conduct of athletes during

the playing of the Anthem7. From a policy standpoint, it is clear these professional leagues have

not adopted a stringent stance against/for passive protests during the Anthem and it can be

argued that expectations surrounding social activism in this form are unclear and not firmly

established. If behavior relating to social activism is truly a concern for teams/leagues, these

employers have the responsibility to set forth an unambiguous guideline and set of expectations

for conduct in order to better regulate it. However, they do risk alienating employees if they do

so. The quality of the product of teams/leagues is almost entirely related to players and their

ability to perform on the field of play, and these players are a relatively scarce commodity.

Knowing this, it could be argued that employers in professional sports should take a more

relaxed approach towards restricting activism and expression. Their employees are not easily

6
https://www.jstor.org/stable/795928?seq=9#page_scan_tab_contents
7
http://www.espn.com/nfl/story/_/id/20848575/rules-national-anthem-differ-sports-leagues
replaceable and contribute heavily to their overall bottom lines. Allowing them to freely express

their mind creates for a healthier employee/employer dynamic in the eyes of the employee, and is

largely in the best interest of teams/leagues.

As it pertains to Title VII of the Civil Rights Act of 1964, employees (private and public)

are protected from “employment discrimination based on race, color, religion, sex and national

origin8,” (U.S. Equal Employment Opportunity Commission). When it pertains to social

activism, discussion and debate is very frequently embedded within these factors of race, color,

religion, sex and national origin. With these factors and social activism so often being

intertwined, it begs the question if teams/leagues can discipline players’ social activism without

infringing upon their Title VII protections even in the slightest. Furthermore, it can be argued

that minorities — who most often are the proponents of social activism within professional sport

— have an intrinsic self-interest in the equitable treatment of others belonging to their race,

color, religion, sex and national origin, and that their outspokenness on social issues is a

reflection of this intrinsic self-interest. If this is the case, it can especially be argued that an

employer’s restriction of freedom of expression as it concerns social activism is an infringement

and intolerance of one’s identity.

Conclusion

There is no simple answer as to whether or not social activism should be condemned and

restricted or supported and allowed in the publicly viewed yet privately-held workplace of

professional sports. Reasonable arguments centered in law and policy can be made on both sides,

8
https://www.eeoc.gov/laws/statutes/titlevii.cfm
with strongly voiced advocates in agreeance and in opposition to displays of social activism in

sports. If anything, I would hope this paper contributes to that discussion and works to bridge a

gap of misunderstanding between the two sides. In an increasingly polarized American political

landscape, sports has the immense potential to foster an environment of goodwill, empathy, and

tolerance. That potential should not be squandered.