United States: Where Is The Line? Options For Professional Leagues And Teams Facing On-Field Player Social Activism

Last Updated: February 27 2018
Article by Mathilda S. McGee-Tubb

In July 2016, four players on the Minnesota Lynx WNBA team wore black shirts in support of the Black Lives Matter social justice movement. The WNBA fined the players, but later rescinded the fines. In August 2016, San Francisco 49ers quarterback Colin Kaepernick refused to stand during the national anthem protesting social injustice and police brutality. The NFL responded that "players are encouraged but not required to stand during the playing of the national anthem." The teams' and professional leagues' responses to these acts of social activism reflects a level of uncertainty about the right response.

There are any number of reasons why a team or league may want to respond to an athlete's social activism, including to maintain image or reputation, enforcing team or league norms, values, and expectations for players; or maintain good relations with other constituents, partners, or sponsors. Professional athletes' exercise of their rights to speech, expression, and social activism are not new, either on or off the field. But teams and leagues are increasingly facing scrutiny by the media and the public to respond quickly and decisively to such acts.

How a team or league responds is not just a matter of form. Responding to a professional athlete's social activism on the field carries a number of significant legal implications of which a league or team should be aware before it takes any responsive action, whether through a public statement, disciplinary decision, or termination. Below is an analysis of potential legal issues in responding to player social activism, and a guide for how to address acts of on-field social activism to avoid costly disputes or litigation based on the response.

First Amendment Rights of Players

The U.S. Constitution prohibits "state actors" from abridging freedom of speech. The NBA, NFL, MLB, NHL, NCAA, United States Olympic Committee, and other professional sports leagues and their member teams are private organizations, and therefore are not subject to the First Amendment claims from players generally. In rare circumstances, these entities can be deemed state actors if they are performing quintessentially public, governmental functions, but receipt of services or financial incentives from host cities is generally not enough to change a league or team's status.

In contrast, public colleges and universities, high schools, stadiums that receive public funding and some high school athletic associations are bound by the Constitution, and must be particularly careful when their conduct may infringe upon a player's First Amendment rights to freedom of speech and expression.

Limitations on a League or Team's Response to a Player's Conduct on the Field

Most professional sports leagues have their own constitutions and collective bargaining agreements (CBAs) that set the parameters for player conduct. Leagues exercise a significant amount of control over athletes' actions, and can punish both players and, in some instances, teams for players' conduct. Courts generally will review a league's determination for abuse of discretion or to determine if the determination was reached without regard to the league's stated process.

The MLB, NBA, NFL, and NHL all vest their commissioners with broad discretion to discipline professional athletes in the "best interests" of the sport. However, this discretion is guided by more specific policies.

League policies on the national anthem demonstrate different approaches to directing players' conduct in a scenario that inherently invites expressive activity by players:

  • The NFL requires that the national anthem be played prior to every game, and that during the anthem, "players on the field and bench area should stand at attention, face the flag, hold helmets in their left hand, and refrain from talking." The policy further provides that non-compliance with the anthem policy may result in discipline.
  • The NBA and WNBA anthem policies require that "players, coaches and trainers are to stand and line up in a dignified posture along the sidelines or on the foul line during the playing of the national anthem," but NBA Commissioner Silver has said that standing is an expectation, not a requirement.
  • The NHL requires that the national anthem be played before games, but does not direct players' conduct during the anthem.
  • MLB and NASCAR have no official anthem policy.

These policies guide, and in some cases limit, whether a league or team can discipline a player for particular conduct during the playing of the national anthem at a game

How Should a League or Team Assess Its Response to a Player's Conduct?

Before a league or team evaluates action relating to an athlete for social activism, it is critical that it take the following steps:

Assess where and when the act occurred. If the act occurred at a public educational institution or publicly funded stadium, there may be First Amendment implications for any disciplinary action. Courts have rarely found private professional sports leagues or teams to be "state actors", and when they have, it has typically been with respect to policies or practices affecting the general public, not a particular athlete. Nonetheless, leagues and teams should be aware of and prepared for an enterprising argument that their relationship with state and local government is so significant that the First Amendment applies.

Consult the terms of the applicable CBA and any league rules, policies, or procedures incorporated therein, as well as the player contract.

  • The CBA defines the relationship between the league and players, and guides the league commissioner's power to discipline players. The CBA often incorporates the league's constitution, by-laws, and any other league rules. These documents along with applicable stipulations in the player contract provide the rules of the road.
  • What conduct is prohibited? Generally, league rules permit the commissioner to discipline players for conduct that is detrimental to the integrity of or harms public confidence in the sport. This provides the commissioner with very broad, discretionary authority. Do any other agreements modify the CBA or applicable league rules? Has laxity in league practices waived the prohibited conduct at issue? Are these other agreements enforceable?
  • What disciplinary process and standards must be followed? Do the league rules set forth a particular process that must be followed before disciplining a player? Who must be involved in this process? Does anything in the CBA modify this process, or impose additional requirements? Leagues and teams must ensure that they follow the applicable procedures carefully to be successful in inevitable and subsequent appeals, arbitration, or lawsuits for breach of contract.

After consulting all applicable agreements, determine the appropriate action and public messaging, if any, taking into account the potential consequences of disciplinary action. The suspension, fine, or termination of a player contract for activism may be permitted, as long as it is done consistently with applicable rules governing player conduct and is not targeted to prohibit certain forms of protected speech. However, teams and leagues should be aware of the ancillary effects of discipline, including termination:

  • Under some player contracts, the player will be owed money if the employment relationship ends before the contract term expires. Examination of financial implications must be part of the prospective thinking.
  • Failure to follow applicable rules and process—including the standards and procedures for imposing discipline—could lead to arbitration or a potential lawsuit, which could be costly and bring negative publicity. Know the rules of the road for disciplining a player.
  • Other players' voluntary departures, angry fans, and defamation lawsuits are all possible consequences following the discipline of a player. Teams and leagues should anticipate these potential responses, and consult counsel on a comprehensive legal strategy, which should inform the messaging strategy.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions