We Are United: Why Missouri’s Proposed Bill Restricting Student-Athletes’ Free Speech Is Unconstitutional

By Adam Juratovac
Adam is an attorney, founder of AthletesLTD, and Team Captain of Team On 3. He advocates for athetes’ rights on the field and in the classroom through AthletesLTD’s academic and life skill programs. 

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Taken from Gary Pinkel’s Twitter

Earlier this year I wrote about athletes’ free speech, particularly their right to show support for Eric Garner by wearing t-shirts stating “I Can’t Breathe.” Constitutionally guaranteed rights of students and student-athletes are under attack again, this time by Republican Rick Brattin of the Missouri House of Representatives. He introduced House Bill No. 1743 that overreaches with this statement:

“Notwithstanding any other provision of law, any college athlete who calls, incites, supports, or participates in any strike or concerted refusal to play a scheduled game shall have his or her scholarship revoked.”

Case law has already established student-athletes are not employees which reduces employee protections (such as workers’ compensation) typically granted under an employer/employee relationship. Categorizing student-athletes as non-employees means colleges and universities don’t have the same amount of responsibilities and control over the actions of their athletes as they do over their employees.

In a CBS Sports interview, Brattin stated this bill was “absolutely” in response to the Missouri Football team’s protests in support of the Concerned Student 1950 protests demanding the resignation of then University of Missouri president, Tim Wolfe. I’m not going to address Brattin’s comments with regard to student-athletes, the tone of “sit down and shut up” he uses in when speaking about them, or how he tries to draw a parallel between his time as a high school football player and these SEC student-athletes. I’m more concerned with student-athletes’ rights to free speech and how this bill would attempt to silence a protected class. Brattin’s bill not only overreaches the power granted to the legislature, it attempts to bull rush constitutionally guaranteed rights under the guise of the greater public good.

Brattin believes this bill would not infringe on those players’ First Amendment rights, but that is not the case. The bill as written is a hindrance of free speech requiring student-athletes to follow a “condition subsequent” in order to keep a scholarship. For example, a group of football players would not be allowed to support, incite, participate, or call a strike during a scheduled game time—whatever the reason for the strike— or else their scholarship would be revoked immediately. Brattin is asserting a group of striking football players has the potential to cancel a game resulting in a monetary loss which would have to be absorbed by the university. The university, and therefore the state, has an interest in what happens to their money (scholarship money, athletic department revenue), and that their interest is of greater importance than the free speech rights of U.S. citizens. I disagree.

A law cannot lessen the guarantee of free speech, but a law can infringe upon free speech rights if it passes the strictest standard of judicial review, “strict scrutiny.” To be a constitutional restriction the law must be narrowly tailored to serve a “compelling state interest,” such as student safety. Missouri could have lost $1 million dollars for cancelling its game against Brigham Young University due to striking students-athletes not playing in the game. Brattin uses that potential loss of revenue to make the point that the state has a right to restrict activities of its student-athletes. Brattin’s “state interest,” is potential loss of revenue for the university, but that should not be “compelling.”

The revenue of the Missouri Athletics Department is over $83 million. Although it’s a “state interest” to save $1 million dollars in relation to the overall budget, that amount of money is not a “compelling” reason to infringe on First Amendment rights.

Also problematic, Brattin’s proposed bill would not only discriminate against student-athletes, it would unfairly target a protected class. On its face, the bill doesn’t discriminate, but upon closer inspection, it would have a disproportionate adverse impact on minorities.

A report published by the Penn State Graduate School of Eduation in 2013 titled “Black Male Student-Athletes and Racial Inequities in NCAA Division 1 College Sports,” studied the percentage of black male student-athletes in relation to the general the general study body at colleges and universities in six major Division I conferences. The report found black men made up 2.8% of the undergraduate population in those colleges and universities, but 57.1% of football players and 64.3% of men’s basketball players were black. At the University of Missouri in 2014-2015, black men constituted 3.3% of the undergraduate population but made up 65.3% of the football team and 72.7% of the basketball team. Brattin’s bill has the potential to silence the voices of a protected class should they choose to use their athlete status as means to make the biggest impact.

It forces student-athletes to stay silent and weak and “just play the game” even if they disagree with the actions of their university. It denies them the right to speak up for what they believe in, and the ability to use their powerful platform as university athletes lest they lose their ticket to a Division I education.

For many student-athletes, intercollegiate athletics is their way to better life. Learning what one values is often a part of a student’s university journey, and protests are way to voice those values. This bill has the potential to sack a student-athlete’s dreams unless she plays and keeps quiet. That is not only unconstitutional, but it is immoral. Brattin’s proposed bill silences the voice of the underrepresented on the platform that is provided to them. This proposed bill assumes a student-athlete should play regardless of whether he or she feels safe on his or her own campus. That is unconstitutional, and Brattin is out of his depth.

Lastly, the bill allows revocation of an athletic scholarship (a student-athlete’s property) based on exercising his or her fundamental right to free speech. It doesn’t remove the student-athlete from the team, but strips his athletic scholarship, which, for some, is the only way a higher education is feasible.  As a former student-athlete who attended university on a full scholarship, I am very concerned about a law potentially being passed that targets student-athletes unfairly and limits constitutional rights in exchange for non-compelling interests. House Bill No.1743 cannot restrict First Amendment rights and must not pass.

UPDATE: Bowing to backlash, Brattin has, since the writing of this piece, withdrawn his bill. However, it could still be submitted in a future legislative session.