First Amendment Rights of NFL Athletes

First Amendment Right of NFL Athletes

Kameron Lee Casey
University of Indianapolis

First Amendment Rights of NFL Athletes

Introduction
In the 2014-2015 National Football League, to be referred to as the NFL, from
this point forward, season, one of the biggest recurring headlines involved the same
player, and the same issue: Seattle Seahawks Running Back Marshawn Lynch did not
speak to the media, even though he was contractually required to. Lynch received
warning of a $50,000 fine for similar action during the 2013-2014 season, but was given
a chance to redeem himself this past season. He failed to do so, and in turn, the NFL fined
Lynch a total of $100,000; $50,000 for the 2013 violation and $50,000 for the 2014
violations. Lynch attempted to appeal both of these fines, but officially lost the appeal on
January 8, 2015 (Breaking down Lynchs Fine).
By straight definition, the NFL is a private organization, and each team in the
league is a separate entity, which happens to be a member of the NFL. Furthermore, in
this definition, it means that each player works not for the NFL, but instead for his or her
respective Football Company (NFL Players are employees of Their Particular Teams).
Within these companies, players have chosen to Unionize via the National Football
League Players Association, to be referred to as the NFLPA, from this point forward.
This is all-important to the main purpose of this paper, as it will explore a number of
topics, relevant to the NFL, its relationship with teams and its relationship with the
public.
In Part I of this paper I will discuss the history of first amendment rights in
relation to private corporations, as well as the rights of employees speaking against
employers. Part II will examine how these issues affect athletes in relation to their
contractual agreements. In Part III of this paper I will examine the NFL and its franchises

First Amendment Rights of NFL Athletes

as state actors and how private organizations have been viewed in this regard in past
cases. In Part IV, I will discuss the official ruling of state actors and how it affects the
NFL moving forward.
I. Free Speech Within Private Corporations
It is fair to say that many United States citizens have used the defense of
freedom of speech in their personal defense of what they can and cannot say. To those
not well educated on the issue, the first amendment right could be interpreted being able
to say whatever you want, whenever you want, to whomever you want. This is not the
case. First Amendment rights do not guarantee absolute free speech. If the expression is
expected to cause the slightest tendency towards harm, the speech can be prevented
(Hopkins, 23-42). Furthermore, expression can be controlled when there is a clear and
present danger that it will bring substantive evils. I could delve to the depths of this issue,
but the main point to be made is that free speech is not absolute in the United States.
This applies even more to private corporations and entities, in relation to their
employees. In general, employers are free to restrict employee speech within the
workplace and during work sanctioned events. In Korb v. Raytheon, Raytheon was a large
corporation who assembled equipment for the United States military and Korb served
vice-president of Raytheons Washington, D.C. office. Korb joined the executive board of
the Committee for National Security (CNS), with Raytheons blessing. The committee is
a non-profit organization that informs the public about issues of national security and the
prevention of nuclear war. During Korbs lunch hour at Raytheon, CNS held a press
conference where Korb spoke ill of the United States increased defense spending and
called for a scaling back of the Navy. This greatly upset two Navy officials a staff

First Amendment Rights of NFL Athletes

member of the Senate Armed Services Committee and Air Force officials, and each
complained to Raytheon officials. This ultimately led to Korbs termination from his
position. Korb attempted to sue for wrongful termination, but lost. The courts ruled that,
because Korb was hired as a spokesperson for the corporation and he spoke against the
corporation's interests. Raytheon had direct relation to the issue and Regardless of
whether Korb believed himself to be acting privately rather than as a Raytheon employee,
and regardless of what Korb actually said, the public perception after the press
conference was that a Raytheon lobbyist advocated a reduction in defense spending.
Raytheon had a financial stake in not advocating that position. Therefore, it determined
that Korb had lost his effectiveness as its spokesperson (Standler). This affects the NFL
directly, as it as an entity, as well as its franchises operate as private corporations.
Away from work, employees are afforded rights to speech against employers via
social media. One of the biggest pieces of legislation that protects employees is section 7
of the National Labor Relation Boards National Labor Relation Act. The section
essentially outlines employees rights to post about employers and employers actions. It
states that the speech is protected if it concerns labor organizing activity that is
concerted, (National Labor Relations Act). In layman's terms, it protects negative or
disparaging speech as long as it represents the opinions of other employees and aims to
improve working conditions. In Mountain Shadows Gold Resort, 330 NLRB 1238
(2000), it was ruled in favor of employees, stating that it was unlawful to discipline
employees for making negative comments about working conditions, including
comments about supervisors. With the rising prevalence of social media, employers have
attempted to create policies to protect their employees from damaging the companys

First Amendment Rights of NFL Athletes

image via social media. In Karl Knauz Motors, Inc. DBA Knauz BMW vs. Robert Becker,
Companys employment policy stated, Courtesy is the responsibility of every employee.
Everyone is expected to be courteous, polite and friendly to our customers, vendors and
suppliers, as well as to their fellow employees. No one should be disrespectful or use
profanity or any other language which injures the image or reputation of the Dealership.
The NLRB stated that this was unlawful and violated section 7 of the NLRA because a
reasonable employee could construe it as prohibiting section 7 activity, i.e. talking about
work conditions. This is valuable to this issue of the paper, regarding NFL athletes rights
to speak out against the NFL and its constituents.
II. Speech Rights and Restrictions in the NFL
The NFLs personal conduct policy requires that:
All persons associated with the NFL are required to avoid conduct
detrimental to the integrity of and public confidence in the National Football
League. This requirement applies to players, coaches, other team employees,
owners, game officials and all others privileged to work in the National Football
League. For many years, it has been well understood that rules promoting lawful,
ethical, and responsible conduct serve the interests of the League, its players, and
fans. Illegal or irresponsible conduct does more than simply tarnish the offender.
It puts innocent people at risk, sullies the reputation of others involved in the
game, and undermines public respect and support for the NFL.
The facts above hold true for the majority of private corporations and employees
across the United States, and although many of the above rules and regulations relate to

First Amendment Rights of NFL Athletes

the what employees can say, the NFL actually controls when athletes and coaches
must be available to speak to the media.
The 2014 media policy requires organizations to allow: post game access; 10-12
minutes (maximum) after the completion of a game, both home and visiting teams locker
rooms are to be opened to all accredited media, with immediate access to all players and
the head coach. On top of this, each team is required to bring the head coach and at least
one star player of the game to a designated interview area as soon as possible. This can be
seen in examples when head coaches or players are seen being interviewed in the hallway
outside of the locker room, or some other are away from the rest of the players and staff.
It also requires that teams allow weekly locker room access, beginning no later than the
week prior to the opening of the regular season through the playoffs. On Monday,
Wednesday, Thursday and Friday, accredited media members are granted access for
player interviews for a minimum of 45 minutes. It is not permissible for any player, coach
or group of players to boycott the media. Star players and players with unusually heavy
media demands are required to be available to media that regularly covers their teams at
least once during the practice week, as well as their required post-game availability. This
minimum for star players does not include other required media obligations such as:
visiting team conference calls, network production meetings, and national media
interviews arranged by the team.
Each player is contractually bound to these policies, regardless of their views on
media, lack of desire to speak to the media or other condition that may deem them unfit
to speak to the media. In the case of Marshawn Lynch, although he has expressed his lack
of desire to speak to the media, his distrust of the media and has been medically

First Amendment Rights of NFL Athletes

diagnosed with social anxiety, the NFL requires him, and anyone that may share these
attributes, to speak to the media on all occasions listed above. Now whether or not Lynch
gives satisfactory answers to media questions is an entirely different issue. In response to
the NFL requiring him to speak to the media, Lynch has complied by giving short and
repetitive answers to all questions. Notably, during the 2015 Super Bowl, he filled his
media requirement by answering every question with the phrase You know why Im
here.
Contractually, Lynch has no case, as the private organization known as the NFL
reserves the rights to control the speech of the employees of its franchises (Freedom of
Speech and Employment). Even if Lynch wanted to bargain to have his contract changed
so that he does not have to speak to the media, he could not, as the NFLPA holds all of
the bargaining power of the union and the players within it. In Article 51, Section 4 of
the NFLPAs Collective Bargaining Agreement, from this point forward to be referred to
as CBA, outlines that The NFLPA will use its best efforts to ensure that the players
cooperate with the Clubs and the news media (including television, radio, internet, print)
in reasonable promotional activities on behalf of the Clubs and the NFL. Interpretation
of this essentially says that Lynch, and other players, will be fined if they keep silent, but
is also open to punishment from Goodell if they speak wrongly during media interactions.
This is furthered in the leagues policy on social media.
The Leagues social media policy allows players to use social media networks,
but not during games. Players, coaches and football operations personnel can use Twitter,
Facebook and other social media up to 90 minutes before kickoff, and after the game
following traditional media interviews. During games, the individual himself will permit

First Amendment Rights of NFL Athletes

no updates or anyone representing him on his personal Twitter, Facebook or any other
social media account. In relation to social media, the NFLPAs CBA states in Article 51,
Section 6 The NFLPA and the Management Council agree that each will use reasonable
efforts to curtail public comments by Club personnel or players which express criticism
of any club, its coach, or its operation and policy, or which tend to cast discredit upon a
Club, a player, or any other person involved in the operation of a Club, the NFL, the
Management Council, or the NFLPA. This also allows the NFL to attempt to control
what athletes say about the NFL and its constituents via social media sites like Twitter,
Facebook, Instagram, et. al.
In 2009, San Diego Chargers player Antonio Cromartie received a $2,500 fine for
tweeting Man we have 2 have the most nasty food of any team. Damn can we upgrade 4
str8 years the same dish maybe thats y we cant w[in] the SB we need (Should NFL
Players Push Back Against Leagues Social Media Rules?). Had Cromartie appealed the
fine, he actually had substantial grounds to have it reversed. Going back to article seven
of the NLBA, he was criticizing a working condition, and if his teammates agreed with
his sentiment towards the food, his tweet would have been considered concerted and he
would have gone without fine. In another instance, during the 2012 season, when the
league was utilizing replacement referees, Green Bay Packers player T.J. Lang spoke out
on Twitter, criticizing the NFL and the referees. For this case, the NFL actually decided
against fining Lang, as he was, again, tweeting about working conditions with sentiments
shared by his teammates (Should NFL Players Push Back Against Leagues Social Media
Rules?).
III. The NFL and its Franchises as State Actors

First Amendment Rights of NFL Athletes

Thus far, this paper has shown that there are little first amendment rights in the
NFL. The First Amendment protects free speech, but only against actions by federal, state
and local government officials and agencies. And, as stated before, the NFL and its
franchises currently operate as private entities. In these respects there has been little
change in favor of the players, rather a tightening of what players can and cannot say or
do in terms of expression. This trend has potential to come to a halt, as a number of legal
commentators and journalists have brought up what some deem to be a compelling
argument for the athletes. The argument is grounded in that the NFL and its franchises are
currently reaping the benefits of state actors, all while profiting as private entities.
A state actor is defined as a person or entity acting on behalf of a governmental
body, and is therefore subject to regulation under the United States Bill of Rights. These
rights include the first, fifth and fourteenth amendments, which prohibit federal and state
governments and entities from violation, certain rights and freedoms; more specifically
for this case, it prohibits the violation of free speech (State Actor Legal Defintion).
Seemingly, this would apply to people who are directly employed by local, state or
federal government; but on the contrary those with an indirect relationship to the state
have been defined as state actors. A number of court cases have arisen in just the past 30
years over the question of private companies with vested interest and benefits from the
state are considered state actors.
Before getting into the brass details, a laymans example can help further help in
defining an entity, which qualifies as a state actor. Batman often acts on behalf of the
Gotham Police Department in order to catch criminals in ways the police department
could not. Batman works in close regard with commissioner Gordon, someone the state is

First Amendment Rights of NFL Athletes

10

definitely responsible for. In addition, Batman receives help from Gordon in the form of
information and evidence on criminals. On top of that, the entire police department has
worked with Batman and the Bat Signal is lit by Gotham police department officials and
is on the police building, which invokes him to help in what would normally be a public
function. So, because Batman is works with, is invoked by and serves in part for the state,
he would be considered a state actor (Is Batman a State Actor?).
This is seen in the real-worldview in Lugar v. Edmondson Oil Co. 457 U.S. 922,
937 (1982). In this case the Supreme Court gave a two-part test: Conduct allegedly
causing the deprivation of a constitutional right protected against infringement by a State
must be fairly attributable to the State (or in this case to a state actor). In determining the
question of "fair attribution," (a) the deprivation must be caused by the exercise of some
right or privilege created by the State or by a rule of conduct imposed by it or by a person
for whom it is responsible, and (b) the party charged with the deprivation must be a
person who may fairly be said to be a state actor, either because he is a state official,
because he has acted together with or has obtained significant aid from state officials or
because his conduct is otherwise chargeable to the State. Pp. 936-939.
So how can the stipulations above be applied to the NFL and its teams? As it was
stated before, the NFL operates as a private entity. And as a private entity, the players,
coaches and other staff that operate under it are not privy to the same constitutional
protections as those in the public. However, under the state action doctrine, even through
a private entity, these rights can become active, so to speak. Historically, the courts
have ruled a number of ways on state action cases and each is judged by sifting facts
and weighing circumstances, (Burton v. Wilmington Parking Authority, 365 U.S. 715,

First Amendment Rights of NFL Athletes

11

722). That being said, there is no strict set of rules or guidelines that the courts look at in
these cases. In another case, Brentwood Academy v. TSAA et al., 531 U.S. 288, 289), the
courts stated no one fact is a necessary condition for finding state action, nor is any set
of circumstances sufficient, for there may be some countervailing reason against
attributing activity to the government.
These cases, along with others, affect Lynch in a number of ways, if he chose to
pursue legal action. The first case, Burton v. Wilmington Parking Authority, 365 U.S. 715,
722, ruled against the man denied service attempting to eat at a private business, housed
within a public parking facility. On the other side, in Brentwood Academy v. TSAA et al.,
531 U.S. 288, 289, the courts ruled in favor of Brentwood Academy, because although the
Tennessee Secondary School Athletic Association is a private entity, it is comprised
largely of public high school representatives. The courts ruled that without the public
high school officials participation, which made up 84% of the governing body, the
association would not be recognizable. So the arguments stands, without public
support, would the NFL be recognizable?
The NFL and the teams that operate within it all benefit from public funds to build
stadiums and facilities for their players and staff. For example, the Indianapolis Colts
play at Lucas Oil Stadium, which is funded by a 1% tax on prepared food in nine out of
ten of the counties surrounding Indianapolis. Marion County is paying an additional 1%
tax, as it is still paying an original 1% tax for the RCA Dome. And that is just for the
building of the stadiums. In addition, the Colts, like many other teams, have used public
funds to make upgrades to stadiums. In 2013, they used $2 million to add luxury suites to
Lucas oil. Similarly, the Washington Redskins were granted $4 million in taxpayer dollars

First Amendment Rights of NFL Athletes

12

to upgrade their workout facilities. Those trends are across the league and teams are
giving back very small amounts to the communities that pay for them. According to the
Cincinnati Bengals press materials, the team gives around $1 million to Ohio community
groups, which is only four percent of the funds they receive from public subsidy. And not
to put a final stake in the beast, as of 2013, 12 of the 30 NFL teams made a profit on
stadium subsidies alone, meaning they have gotten and continue to receive more money
than they needed (NFL Fleeces Taxpayers).
To further show public benefit, it is also necessary to examine the tax benefits that
NFL teams receive. One of the most recent examples is the new Dallas Cowboys
stadium. Its appraisal came in at almost $1 billion. If the cowboys were to pay property
tax, they would owe upwards of $6 million, each year. Instead, they are tax free, and the
cost is offset by raising the taxes of the county in which the stadium is housed (NFL
Fleeces Taxpayers). Although that may be tough to swallow for some, it is not off-trend,
as the NFL as an entire organization has tax-exempt status, as it operates as a nonprofit
organization. This happened due to two main pieces of legislature: The 1961 Sports
Broadcasting Act and the 1966 Public Law 89-800. The 1961 Act allowed for leagues
to conduct television broadcast negotiations. And the 1966 law broadened the antitrust
exemptions of the 1961 Act. But the biggest key here is that, while Public Law 89-800
was in negotiation, NFL lobbyists vied to have the phrase or professional football
leagues added to the section that stated which types of organizations were given
nonprofit status. After the Law was enacted, section 501(c) 6 of 26 U.S.C, the Internal
Revenue Code read: business leagues, chambers of commerce, real-estate boards, boards
of trade, or professional football leagues. The NFL as an organization, from that point up

First Amendment Rights of NFL Athletes

13

to this day, has been a tax-exempt organization with nonprofit status. A nonprofit
organization whose commissioner now makes upwards of $30 million annually.
And as if this were not evidence enough, all NFL games are broadcast on
television. The airwaves inherently belong to the public. Unless they are airwaves where
NFL jerseys are being broadcast. Even though the images are captured and sent on public
airwaves in stadiums funded by the public, the NFL has gained exemptions, which allow
it to privatize and monetize off the broadcasts. Each and every game, this disclaimer is
heard: This copyrighted broadcast is the property of the National Football League. Any
rebroadcast or reproduction without the consent of the NFL is strictly prohibited.
Although taxpayers may or may not be watching the games in the stadiums that their
dollars fund, they are not reaping the benefits of the profits that the NFL and its
organizations receive for the broadcasts.
Conclusion
NFL players and coaches, under current circumstances, do not enjoy the same
first amendment rights as public citizens, due to the fact that they operate under a private
organization. This is not uncommon, as many other leagues and corporations outside of
the sports world have similar restrictions. The biggest key is not only to what athletes
can say, but also to when they must speak to the media. The 2014 media policy requires
organizations to allow: post game access; 10-12 minutes (maximum) after the completion
of a game, both home and visiting teams locker rooms are to be opened to all accredited
media, with immediate access to all players and the head coach. On top of this, each team
is required to bring the head coach and at least one star player of the game to a designated
interview area as soon as possible. There are also further requirements for access

First Amendment Rights of NFL Athletes

14

throughout the week leading up to games, as well as the offseason. Each player is
contractually bound to the policies and each player is limited to change that contract due
to the collective bargaining agreement that gives the NFLPA bargaining power of the
union and the players within it.
If Lynch or players with similar views were to make an attempt to contest these
rules, they would need to be able to prove that the NFL is a state actor. Historically, cases
have gone either way when plaintiffs have tried to prove corporations to be state actors.
The NFL receives public dollars to fund its stadiums and as of 2013, 12 of the 30 NFL
teams actually made a profit on stadium subsidies alone, meaning they have gotten and
continue to receive more money than they needed. So not only are teams making money
from the public by selling tickets, jerseys, advertisement, etc., they are also making
money off of the public through tax dollars, even if taxpayers are not reaping the benefits
of the teams profits. Furthermore, the NFL broadcasts their games in these publicly
funded stadiums on public airwaves, but due to antitrust exemptions, they are allowed to
privatize and further monetize off of the teams.

First Amendment Rights of NFL Athletes

15

Works Cited
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