AuthorRotenstein, Leon

"It wasn't done for a malignant reason. It was only done to bring attention to the atrocities of which we were experiencing in a country that was supposed to represent us."--Tommie Smith, U.S. Olympic Gold Medalist. (1)


    The Olympic Games have always been an inherently political affair--established to bring the world together through sport. (2) As such, and perhaps inadvertently, the games have been a venue for political protest for almost as long as they have existed in their modern form. (3) Just ten years after the modem Olympic Games began in 1896, Peter O'Connor, an Irish track and field athlete, was forced to compete for Great Britain during the Irish fight for independence. (4) In response to his new status as a British athlete, O'Connor scaled a flagpole during his medal ceremony and waved a green flag reading "Ireland Forever" in Gaelic. (5) The 1968 Olympic Games in Mexico City were the venue of similar protests by Vera Caslavska, a Czechoslovakian gymnast who went into hiding when the Soviet Union invaded her country. (6) After winning four gold and two silver medals, Caslavska turned her head from the Soviet flag in protest of the Soviet Union's invasion. (7) While the International Olympic Committee (IOC) did nothing in response to this specific act, Caslavska was unable to coach or take any part in the world of gymnastics until the fall of the Soviet Union in 1991. (8)

    John Carlos and Tommie Smith, two American track and field athletes, protested at the medal ceremony for the two hundred meter sprint by raising their fists in a black power salute during the Star-Spangled Banner. (9) Their protest was in response to the Civil Rights Movement, the continuing war in Vietnam, and the assassinations of Martin Luther King, Jr. and Robert Kennedy. (10) The IOC took immediate action, suspending Carlos and Smith from the American team and sending the pair back to the states. (11) While the lives and careers of these athletes were upended because they took a stand for their beliefs, there has never been consequences for a nation that chooses to boycott the Olympic Games. (12) This discrepancy reveals the IOC's unbalanced approach in preventing the Olympics from being used for political purposes--the politically motived actions of athletes are punished, while the politically motivated actions of nations are effectively ignored. (13)

    Protests by athletes are not specific to the Olympics, as professional athletes in the United States have protested at games in their own respective leagues. (14) In 2016, San Francisco 49ers quarterback Colin Kaepernick knelt during the national anthem to protest police brutality and racial inequality in the United States, sparking a movement that spread through all United States professional sports. (15) Kaepernick's protest caught the ire of the Republican Party and then-Republican presidential nominee Donald Trump, who called the act disrespectful, un-American, and an attack on veterans and service members. (16) Informal pressure from conservative consumers and commentators, as well as then-President Trump, resulted in the National Football League ("NFL") announcing a rule penalizing players who kneel during the national anthem. (17) Despite the new rule, President Trump continued to criticize the NFL, sparking more protests from players and greater outcry from fans. (18) Americans remain divided in their views on athlete protests, and the act of kneeling during the national anthem has remained at the center of the controversy. (19)

    This note analyzes the United States Olympic and Paralympic Committee's ("USOPC") previous policy of barring athlete protest during sanctioned events and seeks to prove that this action was unconstitutional. (20) While the USOPC does not currently enforce this policy, the risk of reversal warrants careful consideration of this issue. (21) Athletes who choose to protest at future Olympic Games or international competitions should be allowed to do so freely, without retribution from the USOPC, or the IOC acting through it. (22)

  2. FACTS

    The IOC was established in 1894 as an independent, international organization, with the role of overseeing the Olympic Games and international sport competitions, reviewing bidding processes, facilitating the growth of sport and sportive collaboration around the world, and promoting the political neutrality of the Olympic Movement. (23) This dedication to political neutrality is stated in Rule 50 of the Olympic Charter, the "codification of the fundamental principles of Olympism, and the rules and bye-laws adopted by the International Olympic Committee." (24) Rule 50 itself bars any "kind of demonstration or political, religious, or racial propaganda ... in any Olympic sites, venues or other areas." c To ensure adherence to Rule 50, the IOC relies on the National Olympic Committees to evaluate infractions and dole out consequences to their own athletes instead of imposing the sanctions itself. (26)

    The USOPC, the IOC's American counterpart, was initially established as the United States Olympic Committee ("USOC"), and is a federally incorporated and chartered, independent organization. (27) Founded in 1978, the USOC served as the coordinating and governing body for all amateur athletic activity directly related to international competition. (28) As such, it deals directly with, and follows the rules of, the IOC-including the IOC's infamous Rule 50. (29) The USOPC has the power to enforce IOC rules through its incorporating statute, and its constitution and by-laws give it full authority over the eligibility and sanctioning of athletes. (30)

    In the lead up to the 2019 Pan-American Games, the USOPC required all its competing athletes to sign a contract promising not to violate Rule 50 by taking part in political demonstrations during the games. (31) In spite of this contract, American Olympic foil fencer Race Imboden took a knee on the medal podium after the U.S. Men's Foil Team won gold. (32) In addition to breaching his contract, his protest ran afoul of Rule 50 of the Olympic Charter. (33) In response to his protests, the USOPC issued a statement of disapproval. (34) The USOPC then sent Imboden a letter informing him that he was being put on a twelve-month probation whereby another infraction would result in his ineligibility to compete in the 2021 Tokyo Olympic Games. (35) In early 2020, the IOC reaffirmed its full-throated adherence to Rule 50. (36) This affirmation came under the guise of promoting harmony and preventing "divisive disruption" during the games. (37) The guidelines released by the IOC clarified that "kneeling," specifically added as an example, would not be allowed as a form of protest on medal podiums. (38)

    Following summer 2020's Black Lives Matter movement, and the election of President Joe Biden, the USOPC suddenly reversed its decision, renouncing its policy against athlete activism so long as protests were "peaceful" and "respectful." (39) However, the USOPC retains the ability to unilaterally reverse its position again. (40) Were this to occur, any athlete exercising their constitutional right to free speech from the podium would be stripped of their eligibility to compete. (41)


    To establish that the Constitution bars the USOPC from conditioning the benefit of participation on waiving the right to protest, an athlete must prove that: (1) the USOPC functions as a state actor or has taken a state action; (2) the athlete exercised their constitutionally protected right to free speech; and (3) the USOPC, as a state actor, conditioned the benefit of competing on the athlete's waiver of the right to exercise their constitutionally protected right to protest. (42)

    1. Federally Chartered Corporations as State Actors and State Action

      The question of whether the USOPC is a state actor was first addressed in DeFrantz v. U.S. Olympic Committee43 In 1980, under considerable pressure from the United States government, the USOPC (then the USOC) boycotted the Moscow Games in response to the Soviet Union's 1979 invasion and occupation of Afghanistan. (44) Twenty-five athletes and one USO[P]C Executive Board Member sued the USO[P]C to challenge the decision not to send American athletes to the 1980 Moscow Olympics. (45) The plaintiffs claimed that the USO[P]C's action to boycott the games constituted a "governmental state action" that abridged their rights of "liberty, self-expression, personal autonomy and privacy" as guaranteed by the First, Fifth, and Fourteenth Amendments to the U.S. Constitution. (46)

      In evaluating the plaintiff's argument, the court addressed two issues: (1) whether the USO[P]C's decision was a state action; and (2) whether the USO[P]C's decision "abridged any constitutionally protected rights." (47) The court looked to two cases when determining whether the USO[P]C committed a state action: Burton v. Wilmington Parking Auth. (48) and Jackson v. Metropolitan Edison Co. (49) Under Burton, the Court asked whether the state had "so far insinuated itself into a position of interdependence with [the private entity] that [the entity] must be recognized as a joint participant in the challenged activity." (50) While the Supreme Court found that the private entity in Burton committed a state action, the D.C. Circuit declined to do so for the USO[P]C. (51) In its opinion, the court noted that there was no evidence of a "symbiotic relationship" between the government and the USO[P]C, outside of the funds Congress used to establish the USO[P]C and the fact that its incorporating statute requires the USO[P]C to submit an annual report to the President and Congress. (52) The court then held that there was no "obvious" or "deep enmeshment of the defendant and the state" because the "USO[P]C receive[s] no federal funding and exists and operates independently of the federal government." (53)

      Under Jackson, there is a governmental action only when there is a...

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