This article is adapted from a Showcase CLE program titled “Social Justice Intersecting with Sports: Is It Right?” that took place at the ABA Business Law Section’s Hybrid Spring Meeting on Friday, April 1, 2022. To learn more about this topic, view the program as on-demand CLE, free for Section members.
“I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident, that all men are created equal.”
“I have a dream that one day on the red hills of Georgia, the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood….”
Dr. Martin Luther King, Jr., August 28, 1963
What is social justice? What is its relationship to sports? How do they intersect with the law? Starting with the first question, the term is defined by the John Lewis Institute for Social Justice as: “Social justice is a communal effort dedicated to creating and sustaining a fair and equal society in which each person and all groups are valued and affirmed. It encompasses efforts to end systemic violence and racism and all systems that devalue the dignity and humanity of any person.” While the focus here is on race, social justice can be applied more broadly to include, among other things, gender, ethnicity, religion and sexual orientation.
This article will describe how social justice and sports overlap. But a valid question remains—how does all of this relate to the law? First, social justice inherently relates to fundamental rights of athletes—including the constitutional rights to free speech and to vote. Perhaps the most recent, bold expression of social justice issues in sports litigation is Brian Flores’s lawsuit alleging rampant discrimination in National Football League (NFL) hiring, but many other legal issues come into play. For example, Major League Baseball (MLB) abruptly relocating its All-Star Game in 2021 in response to controversial Georgia legislation making voting more difficult impacted a web of contractual relationships among parties supporting that event. Potentially the most transformative change ever in college athletics is the advent of athletes’ ability to monetize their name, image, and likeness (NIL). This was enabled by a seminal case before the US Supreme Court in 2021 involving antitrust law, NCAA v. Alston. What’s the connection with social justice there? The perception of many and particularly people of color has been the multi-billion-dollar business of major college athletics is a plantation-like model. The belief was the system is leveraged on the backs of unpaid labor, largely that of Black students, who generate funding for less lucrative sports with mostly White participants. And, as reflected in the O’Bannon v. NCAA case, NILs constitute intellectual property.
Over the past half century, the US Supreme Court on other occasions has spoken on subjects relating to or impacting issues of social justice including its decisions in Tinker v. Des Moines Inde. Cmty. Sch. Dist. (First Amendment does not prevent schools from student speech restrictions) and Flood v. Kuhn (rejecting a player challenge to the MLB reserve clause, which prevented freedom of movement). Further, many social justice issues can be interwoven with collective bargaining agreements (CBAs), league/team rules and other labor-related legal issues that arise in the sports world.
The intersection of social justice with sports has been prominent in the U.S. for over a century. As the two began to overlap, it took time but eventually legal challenges emerged. The MLB “color barrier” was first imposed in 1887. At the 1936 Olympic Games in Berlin, capital of Hitler’s Nazi Germany, several Jewish US athletes opted out in protest. Meanwhile, Black athlete Jesse Owens decided to defy Hitler’s vision of an Aryan nation by competing—quite successfully. After World War II, systematic US racism remained. Yet in 1947, finally a Black baseball player, Jackie Robinson, was promoted to MLB. Robinson’s courage and resilience are the subject of books and films but often overlooked is his civil rights commitment, including his organizing of marches with Dr. King. After all, even after his groundbreaking career was over Black people in many parts of this country continued to be denied basic rights under the Constitution including the right to vote.
In the 1960s, active Black athletes began to speak and engage in acts of protest. Muhammad Ali took center stage, and at the peak of his career became a conscientious objector after being drafted. Ultimately the US Supreme Court overturned Ali’s conviction for draft evasion, but he lost his title and economic livelihood for years. Other courageous Black athletes supported him, including Bill Russell, Lew Alcindor (now Kareem Abdul-Jabbar) and Jim Brown. More events spotlighting social justice in sports arose later in the decade. On the international stage, Americans Tommie Smith and John Carlo protested during the Olympics medal ceremony in 1968 in Mexico City, despite the consequences they would face from the International Olympic Committee (IOC). And yet another prominent professional athlete would bring a challenge all the way to the highest court in the land: MLB player Curt Flood challenged MLB on antitrust grounds, likening the reserve clause in baseball contracts to “being a slave 100 years ago.” Ali and then Flood were legal trailblazers—challenging the US Government and an entire sport in court.
Many overlook the periodic social justice consciousness-raising that took place in sports in the succeeding decades, perhaps partly because it was overshadowed by these earlier athletes but also because the economics of sports changed radically. Players gained free agency gradually, and their earning power grew tremendously. Owners also grew wealthier through valuable revenue sources, including richer broadcast deals. Issues regarding compensation centered around CBAs, lockouts and strikes, with both sides represented by high-priced lawyers, and labor law disputes overshadowed cries for equity and fairness. This is not to ignore the Syracuse 8, the Battle of the Sexes and Title IX, Georgetown coach John Thompson, Arthur Ashe, NBA courtside protests and Proposition 48—much of which went no farther than protests and powerful symbolism but some spilled into courts of law.
However, in the past decade, athletes’ contribution to consciousness-raising regarding race reached a pinnacle. Catalysts were the unjustifiable killings of Black people, first teenager Trayvon Martin and then (among others) Michael Brown, Eric Garner and Freddie Gray, in first instance by a neighbor who avoided conviction and the others by police using unnecessary force. These events put out into the open very legitimate questions about the US legal system and race. Player protests took various forms, including LeBron James and teammates donning hoodies in honor of Martin, NFL players making “don’t shoot” on-field poses, boycotts by collegiate football players and WNBA players wearing “Black Lives Matter” t-shirts. Activism by athletes was spotlighting concerns about law enforcement, prosecutors and courts not giving people of color equal justice.
A pivotal moment was the 2016 NFL season, when Colin Kaepernick began kneeling during the national anthem in protest over US oppression of Black people. Teammates and others followed his lead by kneeling or staying inside the locker room during the anthem. These calls for social justice were well publicized and generated controversy, partly stoked by the former President. Conventional notions of league and team “rules” and collectively bargained employer-employee relationships were suddenly questioned. Kaepernick would soon be unable to find a job in the NFL and filed a grievance against all 32 teams (a procedure required under the NFL’s CBA). He alleged that the teams colluded to keep him out of the league in retaliation for his activism in raising awareness of social justice issues. The matter was settled confidentially in 2019. The result after a tumultuous period appeared to be greater acceptance and awareness of racial issues, and even an agreement between players and the NFL for funding certain initiatives.
Attention to social justice in sports reached a crescendo in 2020 with the tragic murder of George Floyd. Black Lives Matter became an important, historic movement as thousands of protests took place across the US and more White people joined in. There was unprecedented player action across all sports, and partly by leagues and teams themselves. Some action had legal implications, but all stemmed from seemingly systemic issues with unequal treatment in our legal system. The Milwaukee Bucks players elected not to play a game in protest, and the League rescheduled games. In soccer (with its own historical racial issues) domestically and overseas players engaged in acts of solidarity. Even MLB, with its checkered racial history, moved its All-Star Game from Atlanta in light of Georgia’s controversial voting legislation; the untangling of a maze of event-related contracts and avoiding or minimizing the legal consequences followed. Most recently, former NFL coach Brian Flores commenced a class action challenge against the league and three teams alleging racial discrimination. Such a legal challenge by a young Black coach was unimaginable only a few years ago.
Sports and social justice are intersecting more than ever. Will that continue? Yes. The real question is how impactful it will be in causing change and what role the law will play. Is the Flores action a sign the legal issues underlying social justice more frequently will come to the fore in courts of law? We’ll see.
Americanrhetoric.com. (n.d.). Martin Luther King, Jr. I Have a Dream Speech. American Rhetoric. Top 100 Speeches. Retrieved from https://www.americanrhetoric.com/speeches/mlkihaveadream.htm
Belson, K. (2017, Oct. 15). Colin Kaepernick, Who Began Anthem Kneeling, Files Complaint Against N.F.L. The New York Times. Oct 15, 2017. Retrieved from https://www.nytimes.com/2017/10/15/sports/colin-kaepernick-nfl-collusion.html
Cassius Marsellus Clay, Jr. (aka Muhammed Ali) v. United States, 403 U.S. 698 (1971).
Ccsu.eu. (n.d.). Our Definition of Social Justice. John Lewis Institute for Social Justice. Retrieved from https://www.ccsu.edu/johnlewisinstitute/terminology.html
Flood v. Kuhn, 407 U.S. 258 (1972).
NCAA v. Alston, 141 S.Ct. 2141 (2021).
nytimes.com. (2022, Feb. 2). Read the Complaint by Flores Against the N.F.L. New York Times. Retrieved from https://www.nytimes.com/interactive/2022/02/02/us/brian-flores-nfl-lawsuit.html
O’Bannon v. NCAA, 802 F.3d 1049 (9th Cir. 2015).
Tinker v. Des Moines Indep. Cmty. Sch. Dist. 393 U.S. 503 (1969).
Wulf, S. (2019, Jan. 30). Athletes and activism: The long, defiant history of sports protests. The Undefeated.com. Retrieved from https://theundefeated.com/features/athletes-and-activism-the-long-defiant-history-of-sports-protests/