In February, the International Olympic Committee (IOC) disqualified Ukrainian skeleton athlete Vladyslav Heraskevych from the Milan Cortina Olympics for refusing to change his helmet honoring athletes who had died during Russia's invasion of his country. In today's contentious political climate, we often see elite athletes use their public platforms to engage in political speech or protest-often prompting national and global debate..
Heraskevych's disqualification reflects broader questions relating to whether professional sports organizations, as employers, can regulate their athletes' political speech and expression at home.
Employers of athletes generally have discretion to place reasonable restrictions on athlete speech while those athletes are at work. Like the IOC, private employers like team franchises and leagues are allowed to establish policies that prohibit political activity at, for example, games, media appearances, or other league-sponsored events. Specifically, Rule 50 of the Olympic Charter states, "[n]o kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas."
Does Federal Law Protect Athlete Political Speech?
Whether employers can limit political speech or conduct outside of work is a more complicated question. This is especially true for professional athletes, many of whom have widespread public presences across various media platforms. Federal law offers employers of athletes some latitude in regulating off-duty political speech. Specifically, there is no federal law that broadly protects political speech or activities of private sector employees. Indeed, the First Amendment only constrains government restrictions on speech, not employer restrictions on speech. Likewise, federal antidiscrimination law does not protect against discrimination or retaliation on the basis of political speech or activity.
Still, the National Labor Relations Act (NLRA) provides federal protection for certain types of athlete speech. Specifically, Section 7 prevents an employer from disciplining an athlete for engaging in a "concerted activity." NLRA-protected speech that relates to an athlete's "terms or conditions of employment," including speech about discrimination, wages, or scheduling, typically constitutes a concerted activity.
Purely political speech will not fall under the definition of "concerted activity" if it in no way implicates an athlete's working conditions. However, the National Labor Relations Board makes these determinations on a case-by-case basis, and has in recent history interpreted "concerted activity" broadly. Given the NLRA, limits on professional athletes' speech and conduct are routinely bargained for in collective bargaining agreements or included in standard player contracts. In such agreements, employers tend to seek broad limits on any speech that they deem detrimental to the team or league, which might include political speech.
What Limits Apply to Off-Duty Political Speech? Key State Law Considerations
Certain state laws provide additional political speech protections for athletes' political speech. Several states have enacted laws that directly limit a private employer's ability to address conduct or political speech that occurs in a non-work context. For example, California, Colorado, Louisiana, Minnesota, and New York-all of which have major professional sports teams-have laws that prohibit employers from disciplining employees for engaging in lawful, nonthreatening off-duty political speech and conduct.
While employers can regulate the political speech of employee athletes to some degree, restrictions are subject to critical limits established primarily by state law and contract. Employers considering disciplining an athlete for engaging in political speech should carefully review federal, state, and local law and any applicable collective bargaining agreement.
If you're an employer with questions about how to navigate political speech in the athlete context, you are invited to contact the authors of this article or any other attorney in Venable's Labor and Employment Group or Sports Law Group.