Running the Full-court Press: How College Athletic Departments Unlawfully Restrict Athletes' Rights to Speak to the News Media

• Publication year: 2021

99 Nebraska L. Rev. 86. Running the Full-Court Press: How College Athletic Departments Unlawfully Restrict Athletes' Rights to Speak to the News Media

Running the Full-Court Press: How College Athletic Departments Unlawfully Restrict Athletes' Rights to Speak to the News Media

Frank D. LoMonte and ^[*]
Virginia Hamrick ^[**]

TABLE OF CONTENTS

I. Introduction .......................................... 87

II. The Code of Silence: Athletes Muzzled by Campus Speech Restrictions ................................... 92
A. Abuse and Exploitation Proliferate in Silence ...... 92
B. Public University Athletic Departments Tightly Control Athletes' Speech to the News Media ....... 94

III. Campus and Workplace Speech Rights ................ 103
A. The First Amendment and Prior Restraints ........ 103
B. The First Amendment (Sometimes) Goes to College ............................................ 109
1. Content-Based Punishment for Disruptive Speech ........................................ 109
2. Prior Restraints in School Flunk the Constitutional Test ............................ 113
C. The First Amendment (Sometimes) Works at Work ............................................. 116

IV. Untying the Gags: Workplace Interview Bans Struck Down ................................................. 119
A. Employees Undefeated in Challenging Workplace Gags .............................................. 119

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B. The Dubious "Employee Status" of Athletes ........ 122

V. The Constitutional Netherworld of Sports ............. 127

VI. Media Gag Policies and Athletes' Rights ............... 131

VII. Conclusion ............................................ 136

A coach's power over athletes can extend to virtually all aspects of the student-athlete's life, in such ways that clear boundaries are hard to delineate. This near total control is rarely questioned. It is especially emblematic of coach-athlete relationships in sport cultures that place a premium on winning over other values, such that the team culture encourages sacrificing the liberty and autonomy of the individual for the good of the team (with "good" defined as winning). ^[1]

I. INTRODUCTION

Across amateur and collegiate athletics, story after story has come to light-often, years belatedly-about abuse and exploitation of athletes by people in positions of power. In the collegiate ranks, disturbing reports recently surfaced that, over a two-decade career, a football team physician at Ohio State University groped and fondled dozens of players during medical examinations. University authorities were aware of the misconduct but did nothing to stop it from occurring. ^[2] The Ohio State scandal is especially unsettling given the duration of the officials' willful blindness-but it is not isolated. Rutgers University fired its men's basketball coach in 2013 after videos were leaked to journalists showing his temper tantrums during practice sessions where he kicked players, threw basketballs at them, and taunted them with slurs. ^[3] The University of Utah took years to remove a swimming coach whose players complained of cruel and manipulative behavior, despite evidence of a violent temper and alcohol abuse. ^[4] At the University of Nebraska, softball players say an abusive

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coach made athletes risk their health by playing through painful injuries. ^[5] As one former Nebraska player told the Washington Post: "The truth is there is no one athletes can report to. Everybody that an athlete could trust or may rightfully trust, they still work for the university and answer to the university." ^[6]

The curtain of secrecy that tightly envelops college sports makes it difficult for athletes to blow the whistle on abusive conditions without fear of suffering retaliation. The seemingly obvious recourse for a player who distrusts the internal complaint process-to take the complaint public-is foreclosed at many colleges because athletes are forbidden from speaking to the media without approval from the athletic department. Is this legal? Can a public institution enforce a categorical prohibition on speaking without running afoul of the First Amendment? Despite the widespread perception of university athletic departments, the answer almost certainly is "no."

Courts have consistently found that the First Amendment protects the ability of public employees to speak to the news media about work-related matters without a supervisor's approval. ^[7] First Amendment caselaw is equally clear that public universities cannot restrict or punish student speech absent extreme circumstances. Athletes are treated as occupying a nether zone, fitting comfortably neither in the category of "student" nor "employee." But regardless of which legal status applies to student-athletes, the outcome should be the same: government agencies-including state universities-do not have plenary authority to restrain people from speaking to the press and public. Still, prohibitions on unapproved interviews are, unabashedly, enforced in college athletic programs everywhere. They appear in the handbooks of major college athletic programs from Arizona State ^[8] to West Virginia, ^[9] inhibiting athletes from sharing unguarded observations with the press and public.

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The issue of college athletes' rights has never been more prominent. California exploded the NCAA's long-established adherence to amateurism by enacting a 2019 statute entitling players to capitalize on their notoriety by accepting endorsement payments and hiring agents, activities which the NCAA has long treated as disqualifying. ^[10] This move led legislators across the country to propose lookalike bills. ^[11] Attorneys for college athletes secured a $60 million settlement from video-gaming giant EA Sports after demonstrating that the manufacturer profited by designing "virtual" players based on the likenesses and skills of actual players. ^[12] More than 43,000 former college players received checks as part of a $208.7 million settlement with the NCAA and eleven athletic conferences in a lawsuit alleging that the NCAA unlawfully restrained its member schools from fully compensating athletes for the costs of attending college. ^[13] A pair of parallel class-action antitrust cases brought on behalf of athletes is challenging both the NCAA's caps on compensation and prohibition on earning outside income through capitalizing on the value of athletes' likenesses. ^[14] The NCAA recently entered into a global $75 million settle-

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ment to resolve part of a wave of 300 class-action lawsuits filed by former athletes claiming their schools' inadequate response to concussions exposed them to traumatic brain injury. ^[15] Football players at Northwestern University sounded alarms throughout college athletic departments by launching a unionization movement seeking the benefits of "employee" status that are denied to student-athletes. ^[16] In these ways, athletes and their advocates are organizing to push back against the long-established regime of rigid institutional control that critics have likened to a "plantation" system. ^[17]

This Article augments the growing body of scholarship about athletes' rights by focusing on one particular and largely overlooked right: the right to speak freely to the news media. The Article concludes that athletes' right to discuss issues of public importance-including issues about the safety and integrity of an athletic program-is protected by the First Amendment at state universities despite the fact that institutions across the country are routinely infringing upon this right. The right to speak to the media is foundational to athletes' ability to

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blow the whistle on wrongdoing and safety hazards within their own teams which might otherwise go unaddressed. ^[18]

In Part II, the Article discusses instances in which universities have forbidden athletes from having unapproved communication with journalists, and why the inability to speak freely with the news media puts the safety and integrity of college athletic programs at heightened risk. Additionally, Part II describes the findings of a nationwide survey which documented how pervasively public universities have restricted athletes' ability to speak to the media despite the dubious enforceability of such blanket "gag" policies. Part III describes how the judiciary has adapted First Amendment principles to the settings of the campus and the workplace where free-speech rights at times yield to competing imperatives of institutional effectiveness and order. Part IV explains how public employees have consistently prevailed in constitutional challenges to prohibitions on interviewing that are essentially identical to those put in force by college athletic departments because the policies are overbroad and lack adequate procedural safeguards. Part V looks at how the courts have dealt with constitutional claims by athletes against their institutions. The Part concludes that, while athletes at times have reduced rights that (in the view of most courts) are outweighed by competing imperatives, there is no precedential support for completely...