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Sunday, November 13, 2016
 
ULL suspends four players for caring about the election

I have written a few posts recently about the open questions surrounding the free-speech rights of college athletes. But these cases have generally arisen at private universities (Harvard soccer, Columbia wrestling) that may abide by First Amendment norms as a matter of courtesy, but not law. And those cases involved pretty disgusting instances of racist and misogynist speech that, one could argue  has no value or runs afoul of other considerations (such as Title IX). I disagree with that conclusion, but it at least confounds the analysis.

But the constitutional issue has been teed up directly by the decision of University of Louisiana-Lafayette to suspend four football players after they recorded themselves in the locker room singing and dancing to a song that says "Fuck Donald Trump." Football coach Mark Hudspeth and the university expressed disappointment in the players' "immature behaviors" and the use of lewd language towards one of the candidates. Hudspeth also pointed out that none of the players voted, which has nothing to do with anything. Interestingly, he initially offered a partial defense of his players against those who have "vilified a few 19-year-olds making some immature decisions, and then they were the same ones that voted for someone that has done much worse by grabbing a female in the private areas for the office of the [president of the] United States of America." He backed off that on Friday, saying he regretted offending Trump voters. The school has not identified the four players.

If we are looking for a situation in which punishment triggers a genuine First Amendment claim, this is it. ULL is a public school, so the First Amendment is in play. The players were engaged in core political speech and it is unquestionable that the use of the word fuck and associated gestures as part of a political message is also constitutionally protected. The attempt to frame this as a problem with profane lyrics and gestures, apart from the political message, is unavailing. According to this piece, Hudspeth has made rap music part of the team culture, celebrating a 2011 bowl victory with music blaring in the locker room and having music playing over speakers during practice. And that includes rap songs containing profanity.  So profane rap music is ok, as long as it does not offend a political candidate? It seems to me the First Amendment, if anything, demands precisely the opposite conclusion.

We now are left with the question of whether student-athletes are different than ordinary students because they play for, and represent, the school, making them more like employees. The university statement got at this in its statement when praising Hudspeth for "continu[ing] to educate the team on how their actions are a reflection of the name on the front of their jerseys." This is twisted in two respects. First, a university should be educating players less about the name on the front of their jerseys and more about their opportunities and obligations to be politically engaged citizens. You complain about young people and athletes not being engaged, they you punish them when they are. Second, even if student-athletes are analogous to employees, even public employees enjoy some protection when speaking as citizens on matters of public concern--this would seem to qualify.

This is moot, of course, since it is unlikely the players will challenge their suspensions. Which is too bad, because this looks like a situation in which the school has overstepped, both its role as an athletic institution and as an institution supposedly committed to educating the next generation of citizens.





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