Fair Play?

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.”