Team protest cases are labor law, not free speech

• Pages: 63-63

OCTOBER 2018 ABA JOURNAL || 63

PHOTOS BY KATHY ANDERSON

ANNUAL MEETING REPORT || Your ABA

if someone would tr y that in the

U.S., they would face litigation

by the Department o f Justice

and they wouldn’t have m uch of

a defense.” Adding that w hile

he was “100 p ercent commit-

ted” to prevention and trea t-

ment, he said he bel ieved these

sites sent the wrong message,

giving illegal and dangerous

drugs the imprima tur of gov-

ernment approval.

The embattled deputy attor-

ney general has become a cen-

tral fi gure in the ongoin g probe

into Russian interference

during the 2016 presidential

election. Con fi rmed in his

post by a 94-6 vote in th e U.S.

Senate in April 2017, he soon

found himself a fi xture in the

news. A couple of weeks a fter

confi rmation, he authored a

memo recommending that

FBI Director James Co mey be

fi red. Less than 10 days l ater,

he appointed former FB I direc-

tor Mueller as special counsel

overseeing the Russia investi-

gation after Attorney General

Je Sessions recused himself.

Since then, Rosenstein has

been under near-constant

pressure to fi re Mueller ami d

reports that he cou ld also be

fi red, and he has beco me a tar-

get of House Republicans.

Rosenstein basked in his

warm reception while mak-

ing light of some of his re cent

battles. Noting that Robert

H. Jackson—attorney general

from 1940 to 1941 before being

appointed to the U.S . Supreme

Court—once remarked about

the unpleasantness of dealing

with congressional inquiries,

Rosenstein drew laughs from

the audience when h e stated

that he could relate. —Victo r Li

TEAM PROTEST CASES ARE LABOR

LAW, NOT FREE SPEECH

In spring 2016 , Terri Carmichael Jackso n was

named director of operations for the Women’s

National Basketball Players Association. She

recalled the time as a b umpy introduction to the

job of leading the WN BA players’ union dur-

ing a panel titled “ The Right (or Not) to Take a

Knee: Social Act ivism and Freedom of Spee ch in

Sports” at the ABA Ann ual Meeting.

Sparked by police sho otings of unarmed bla ck

men and the killings of police o cers around the

country, the players Jackson represented wanted

to make a statement. “Th ey understood the

power of their voice and the p ower of consensus,”

she said. “And that’s really im portant and can not

be underestimated in a union setting.”

LABOR ISSUE

Specifi cally, her players wanted to wear T-shirts

to demonstrate concern and solidarity against

the violence. But to do so was a clear violation of

the league’s uniform rules.

Even so, many players wore shi rts that read

“#BlackLivesMatter #Dallas5”—the latter a

reference to fi ve Dallas police o cers killed in

2016—and “ Change Starts with U s.” The players

were fi ned $500 each befo re public outcry led

the league to rescind th e fi nes, according to a

2016 NPR story.

Jackson said this all happened within her fi rst

90 days on the job. “N obody could have pre-

pared me for that,” she sa id.

As player protests and league responses con-

tinue to make headlines, the panel at the annual

meeting made clea r where in the legal realm

these issues fall.

“We’re largely in the federal labo r area, not

federal constitutional law,” said Matthew Mitten,

a professor at Marquette Un iversity Law School .

Cari Grieb, a par tner at Chapman and C utler

in Chicago, and Mi tten said some argue that

President Donald Trump’s direct communica-

tion with NFL team owners , public subsidies

for teams and the interp retation of stadiums as

public forums may trigger First Amendment

protections.

However, Grieb called these arguments fl imsy.

“The NFL is a private emp loyer; they aren’t

a state actor,” she said in reference to th e First

Amendment’s prohibition on the state to infringe

on freedom of expression . “I don’t think Fir st

Amendment claims a re going to hold up in court .”

While the appropriate forums for political

statements are debated and litigated, the panel

agreed that athletes’ demonstrations will con-

tinue over the next deca de.

“I’m just so proud that we a re in a space and

time where folks are more engaged,” Jackson

said. —Jason Tashea

Eric Holder Jr. accepts t he Thurgood Marsh all

Award from Robert N. Weiner, chair o f the Section

of Civil Rights and S ocial Justice .