Do college athletes have a First Amendment right to strike? (essay)

In November, a series of events at the University of Missouri captivated the collective college athletic and academic world. With racial tensions at a boiling point at the Columbia campus, where students conducted protests and a highly publicized hunger strike in an effort to force the removal of then president of the system, Timothy Wolfe, some 30 Missouri football players did what no other college athletes have ever done: during the middle of the football season, they refused to participate in any practice or game until the president was removed.

College and university officials across the country began asking, can the football players do that? Should they do that? What will the university do? What happens if the football team is forced to forfeit their upcoming game against Brigham Young University where, at a minimum, the $1 million guarantee to be paid to Missouri would be lost?

Almost immediately, head football coach Gary Pinkel came out in support of his players by tweeting a photo of white and black Mizzou students standing arm in arm, captioned, “The Mizzou family stands as one. We are united. We are behind our players.” The next day, Wolfe resigned, followed soon after by the resignation of the chancellor of the Columbia campus.

Some observers praised the Missouri football players for taking a stand and having such leverage to set forth change. Others were not so impressed with this power play that placed the Missouri athletic department on center stage and at jeopardy of violating its contractual agreements to participate in an upcoming game. They wanted Missouri to take action against the athletes.

With the large-scale civil unrest occurring in 2014 regarding the police shooting of a black man in Ferguson, Mo., (just a two-hour drive from Columbia) still fresh in most everyone’s minds, and the racial tensions that were present at the university, it seems unfair to play Monday-morning quarterback and second-guess Missouri’s response to the football players’ strike. However, the events there ask the question of whether student-athletes at public educational institutions across the nation have a First Amendment right to strike.

Before social media provided an instant stage on which anyone with fast-moving thumbs and a smartphone could proclaim to millions the conditions and reasons for a student-athlete strike, students were forced to resort to old-school methods of protest. For example, in the seminal 1969 case of Tinker v. Des Moines Independent Community School District, the U.S. Supreme Court decided a case in which two high school students protested the Vietnam War by wearing antiwar armbands to school. Believing this was a disruption to the school, officials suspended the students.The students then sued the school, claiming their First Amendment rights were violated.

The Supreme Court held that the students possessed a First Amendment right to wear the antiwar armbands and that their actions were not a substantial disruption to the school’s activities. In one of its most frequently quoted opinions regarding First Amendment school cases, the court stated, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” However, the court carved out a category of unprotected speech by noting that a school can discipline students for expressive activity “by a showing that the students’ activities would materially and substantially disrupt the work and discipline of the school.” (Italics added.)

As a result, a student-athlete who tweets “Black lives matter” or wears a T-shirt with that caption on a campus would clearly have the First Amendment right to do so and that would likely not be considered a disruption under the standard set forth in Tinker. However, what standard would apply to student-athletes who wish to protest during a game or who go on strike and refuse to practice or play in a game?

In 1972, the 10th Circuit took up Williams v. Eaton, a case in which several black University of Wyoming football players indicated they would wear black armbands during an upcoming football game against Brigham Young University in protest of what they alleged were the religious institution’s beliefs on racial matters. In response to only the proposed protest and potential for disruption during the upcoming game against BYU, the university dismissed the players from the football team, and the football players sued the university. The 10th Circuit upheld the university’s actions, stating that they “…denied only the request for the armband display by some members of the team, on the field and during the game [and that] in these limited circumstances … the trustees' decision was in conformity with the Tinker case and did not violate the First Amendment right of expression of the plaintiffs.”

Subsequently, in 1987, a Kansas district court decided a case in which several black football players at Washburn University of Topeka decided to boycott team practices in protest because they believed the coaching staff and administration were treating them in a racially discriminatory manner. The football players were kicked off the team, and they brought suit against the university arguing, in part, that their First Amendment rights were violated. The university responded by claiming the removal of the players from the team was not a violation of the First Amendment because their actions constituted a disruption to the school.

The district court denied the university’s motion for summary judgment on the First Amendment issue, due in large part to the admission of the coach during his deposition that the student-athletes were excused from practice during their protest. Because of that admission, the court held that the boycott of football practice could not be considered a disruption under the Tinker standard.

However, we’re not in Kansas anymore, and this is not 1987. College football has become a multibillion-dollar industry, and the thought of forfeiting a college football game at the financial expense of the university because a group of student-athletes are protesting a social issue is hard for some athletic departments to stomach. Unlike the football coach at Washburn, who excused his players from practice during the protest, as well as Missouri’s football coach, who supported his players’ boycott of practice and games, a coach may voluntarily decide there is too much on the line to excuse an athlete from practice or a game when the athlete is engaging in a protest.

What would a court likely rule today if a football player refused to practice or participate in games and the coach did not excuse his missing these team functions?

The 10th Circuit’s decision in Williams with regard to the University of Wyoming football players is instructive. If it was not a First Amendment violation for the university to remove from the team the football players who wanted to wear black armbands to a game to protest their opponent’s racial viewpoints, a university would likely be found to possess the right to kick players off the football team who refuse to participate in practice or games. Under the Tinker disruption standard, it is hard to imagine how, for example, a starting quarterback who refuses to show up for a week of practice and an upcoming game because he is protesting would not be a material disruption to the team or the university.

Moreover, student-athletes are bound by their scholarship agreements, which in part, require attendance at team functions, including practice and games. If the student was missing classes to engage in protests, it would result in the removal of his or her scholarship. Similarly, the refusal of a student-athlete to participate in required practice and games because of a protest could result in the removal of the student’s scholarship. In such a case, the student-athlete’s First Amendment claim against the university would likely fail.

Other Legal Considerations

In addition to applying the Tinker disruption standard, a court may apply a Garcetti-like analysis to student-athlete speech. In Garcetti v. Ceballos (2006), the Supreme Court held that a public employee who is speaking as an employee pursuant to his or her official job duties does not have First Amendment protection. If, however, the public employee is speaking as a private citizen on a matter of public concern, the employee may enjoy First Amendment protection. Even though courts have yet to apply the Garcetti public employee speech standard to student-athletes, a court may someday decide to do that.

A court applying the Garcetti framework could conclude that a student-athlete who speaks as a private citizen on a matter of public concern -- for instance, who engages in a protest in the middle of campus after practice -- has First Amendment protection. But a student-athlete who engages in speech as a student-athlete -- for instance, who boycotts team practice or games -- is not entitled to First Amendment protection.

As for the right to strike as a unionized employee, the Northwestern University football players’ petition to be treated as employees and be allowed the right to unionize (and ultimately the right to strike) was dismissed in August of 2015 via a unanimous decision by the National Labor Relations Board. (It should be noted that even if the NLRB had determined that the football players enjoyed the right to unionize and strike, public colleges and universities would not be bound by such a decision, as the National Labor Relations Act does not apply to state agencies and the NLRB does not have jurisdiction over state entities.) As a result, a student-athlete does not have the right under the NLRA to engage in a strike, as student-athletes are not considered employees for purposes of the NLRA.

Not ‘Super Referees’

What does this all mean for colleges and universities going forward? What are the key takeaways?

An institution would be treading on thin First Amendment ice if it were to revoke the scholarship from a student-athlete who supports or encourages other student-athletes to strike or participates in a protest that is not during practice or game time. Additionally, under a Garcetti-like analysis, the student-athlete would be speaking as a private citizen on a matter of public concern and would be entitled to First Amendment protection.

But an institution would likely be able to survive a First Amendment claim, according to the Tinker disruption standard, if it disciplined or removed a student-athlete’s scholarship for refusal to practice or participate in a game, even if the absences were because the student was engaging in a protest. Student-athletes do not possess the First Amendment right to engage in materially disruptive behavior that is in violation of their scholarship agreement such as boycotting practice or games.

And a court would likely be hesitant to second-guess the actions of an athletic department that in good faith believes an athlete who misses practice or a game is a material disruption to the program. The Fifth Circuit has stated that judges are not “super referees,” and the Supreme Court has indicated, “Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values.” As the Texas Supreme Court concluded in 2005 in NCAA v. Yeo, “Judicial intervention in [student-athlete disputes] often does more harm than good.”

Eric D. Bentley is associate general counsel for the University of Houston System and teaches sports law as an adjunct faculty member in the university's Department of Health and Human Performance.

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A 'new deal' for the 21st-century college athlete (essay)

In 1997, I published a book titled The Successful College Athletic Program: The New Standard, in which I wrote about “the deal” between the “student-athlete and the institution." Specifically, I argued that the agreement in which student-athletes provide athletic performance in exchange for the opportunity to earn a well-balanced athletic, academic and social experience resulting in a meaningful degree that prepares them for the next 50 years of their lives was, in principle, fair. As a former college basketball player and former associate commissioner of the Southeastern Conference, I saw enough evidence of this in the players I interacted with that I truly believed it.

Given how much the landscape of intercollegiate athletics has changed since 1997, though, The New Standard might as well have been published in 1887.

Everything about big-time college athletics has exploded -- from budgets to revenue generated, from media exposure to public scrutiny and, in a corresponding fashion, the pressure to win and the 24/7, 12-months-a-year athletic demands on players. The result? There is no longer any question that the education athletes are receiving as their share of the bargain at far too many universities has been woefully inadequate, and in some cases fraudulent. Clearly, it is time to restructure the athlete-institution agreement in a way that reflects the realities of major college athletics in the 21st century.

Before proceeding, we must recognize a fundamental reality. There is no longer any point in referring to the young people who play football and men’s basketball at the major college level as “student-athletes.” Given the amount of time they are required to spend on athletics, for all practicality, they are, in fact, professionals. Further, their ability to keep their scholarships (pay) hinges upon their ability to perform athletically (play). And a professional athlete is one who plays for pay. So let’s move beyond the notion that they are amateurs and can ever be so again. That is pure fantasy.

So how can the deal be restructured to be equitable in the wildly commercialized, highly professionalized, media-driven world of college athletics in the 21st century?

Let’s start with the basics, the benefits provided and costs covered for the athlete while on campus. Fortunately, many of these basic, on-campus needs are beginning to be met with proposals for increased cost of attendance and living stipends and the possibility of multiyear scholarship guarantees that have been granted through recent NCAA changes. That’s a good start.

But let’s not simply give athletes things while on campus to keep them and the public placated in the short term. We must also recalibrate our priorities to where long-term considerations become paramount. That will require a more creative, open-minded and strategic approach.

The New Deal

There are two fundamental principles and responsibilities that colleges and universities owe to all students, including athletes: an educational experience that is relevant in today’s world and a commitment to keeping them safe and healthy.

As has been well documented, the health risks of football are skyrocketing, driven by the increasing revelations relating to the risk of concussion and long-term brain trauma. We’re no longer talking about sprained ankles and broken bones. They can heal. Brains often do not.

As a result, the ground has shifted regarding institutional responsibility for not only athletes’ short-term health while on campus but also their long-term physical well-being. While there are many issues to be worked out regarding eligibility, length of coverage and adjudication of benefits and costs, some package of long-term health care after separation from the institution should be a part of the New Deal.

Further, it is abundantly clear that the standard college educational experience is not available for football and men’s basketball athletes. Yet we insist on forcing many who are clearly nontraditional students into a traditional educational format. Clearly, that approach has not worked. Simply consider the University of North Carolina’s decades-long use of bogus classes and majors to keep athletes eligible as exhibit A. And that was a school that had long been cited as one that did it the “right” way. Obviously, UNC is not the only college to engage in this practice, as evidenced in recent academic fraud cases at Syracuse and the University of Texas. The fact is, academic fraud and disregarding the long-term needs and aspirations of athletes in the name of winning has been going on, in one form or another, for decades, if not for a century.

We simply can’t continue to enter into agreements with young athletes based on a promise on which we can’t deliver. We must restructure the academic portion of their college experience in a way that will make the education they do receive worthy of, and relevant in, the 21st century.

As a foundation, there must be an opportunity and mechanism for athletes to return to school after their playing days are over. For example, for every year that an athlete plays for a university, he should be awarded an additional one-year full scholarship to attend the institution at a later date to more fully avail himself of the broad array of not only educational, but social, opportunities and experiences that were not truly available when playing ball. Regardless of how the specifics are worked out, the New Deal should include such a provision.

The On-Campus Payout

There is another aspect to the educational payout that must be addressed. What should the educational experience look like while on campus?

It starts with the sacred notion of the athlete as a full-time student. The college experience of these athletes is so radically different from that of the average, traditional student that they might as well be attending college on another planet. Why continue the farce of these athletes having to be traditional full-time students when the fundamental structure of the system prevents them from being so?

For example, during their main playing seasons, athletes should be part-time students. During the off-season, they should be required to be enrolled in more hours. But, once again, we must be honest. Being a major college athlete in the sports of football and basketball is a 24-7, year-round job. What they really need is a legitimate off-season. It was never intended that part of the deal was that we “own” them twelve months a year. They are not machines. Athletes need a period of time where they have no responsibilities or requirements related to the sport for at least three months per year. Even professional teams give their athletes time off.

Further, many expect that as a result of several legal cases currently in the system, athletes will be provided the right to leverage their own pictures and images for financial gain while enrolled in college. Rather than fighting these changes, educational and athletic leaders should embrace it as an opportunity to restructure the deal in new and creative ways that are more relevant for the athlete of the 21st century.

For example, giving athletes the opportunity to leverage their name and build their personal brand offers a wonderful experiential educational opportunity to restructure the bargain in a way that makes sense for today’s world.

Why not, for example, provide athletes the option of a restructured curriculum to not only allow them to leverage their name and brand but to provide opportunities to teach lessons in business and entrepreneurship? Let’s put a curriculum in place where, through a true, real-life case study -- their very own -- they learn the skills of innovation, branding and entrepreneurship.

Athletes will be much more engaged as students if their curriculum centers on using their name and image to build a personal brand or a small business that could result in their own financial gain. Such a curriculum could include studies in marketing, social media, brand equity, revenue development, financial investing, sales, leadership and mentoring development, sport management, coaching, and sport law. These courses are far more likely to be viewed as being more relevant by today’s athletes than those that comprise the more traditional curriculum.

Although some may consider such a change simply kowtowing to athletes, the point is that we must reconsider what a meaningful educational experience for athletes in today’s world consists of, as it is clear that the current framework is outdated.

While there may have been a time when athletes could achieve a well-balanced athletic and traditional academic experience, that possibility, for big-time football and men’s basketball athletes, no longer exists. While the athletic side of the enterprise has evolved exponentially, the expectations and standards relating to the academic side of the deal have remained virtually unchanged. We simply cannot continue to run a 21st-century athletics enterprise with a 20th-century mind-set and worldview.

So the question for higher education leaders is whether they are going to be progressive agents of change or victims of what will likely be draconian change. The choice for American higher education is to either sort this out among ourselves or leave it to those outside higher education to impose their version of change upon us.

In short, it’s time for a New Deal. This agreement should be comprised of a restructured academic experience that honors our responsibility to provide a real-world, honest and relevant educational experience but also reflects the realities of today’s athlete.

John Gerdy, former associate commissioner of the Southeastern Conference, is founder and executive director of Music for Everyone and author of Ball or Bands: Football vs. Music as an Educational and Community Investment.

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