Protesting in American sports over civil rights issues is ingrained into our culture. From Jesse Owens’ four gold medals in the Nazi-hosted 1936 Olympics in Berlin to Jackie Robinson entering baseball, even the presence of black athletes in major sports became a protest in itself. Owens was initially set to boycott the Berlin Olympics because of the Nazi regime, but was ultimately convinced not to by the president of the American Olympic Committee called those pushing the boycott, “un-American agitators.” As long as protest of racial discrimination has existed, there has been a strong backlash from those who call it an attack on an idealized concept of America. This parallel counter-protest movement often decides the protests real purpose is dividing or hurting the amorphous essence of the country and creating racial tension, instead of engaging with the protest in good faith. In an increasingly segmented world, sports is a rare collectivist activity, and a natural platform to build solidarity, despite its tribalist elements. It’s also an arena in which humans physically, emotionally and idealistically clash in person, when few such outlets exist in general society.
The amount of attention on professional and elite amateur athletes gives them the ability to start conversations which reach across all sorts of identity and idealogical divides. Where those conversations go after they enter public consumption (no matter how far they stray from the original message or debate) can never negate the immense power athletes have from their platform to get out messages to the masses. In an era of instant communication, anyone’s voice can be amplified, but the saturation of signal can make it harder to get a point across.
Ever since former San Francisco 49ers quarterback Colin Kaepernick first protested the oppression of colored people in 2016 by refusing to stand for the national anthem, a national debate over injustice, racism, patriotism and protesting in sports has been ignited in America. Like many contentious issues that have become part of mainstream conversation, Kaepernick’s protest has been co-opted, spun and twisted by a 24/7 media machine that reflexively devoured the story, only to discard it, then pick it back up when it fit another convenient narrative.
In fact, Kaepernick wasn’t even the first NFL player in recent history to protest civil rights disparities in America. Two years before his protest, after Michael Brown, an unarmed black teenager was shot and killed by police officer Darren Wilson in Ferguson, St. Louis, five St. Louis Rams players (Tavon Austin, Kenny Britt, Jared Cook, Chris Givens and Stedman Bailey) protested a grand jury’s decision not to indict Wilson by coming out of the field with their hands raised in the air. Their reference to “hands up, don’t shoot” was immediately rebuked by the St. Louis Police Officer’s Association, who demanded the NFL discipline the players, saying their, “…gesture has become synonymous with assertions that Michael Brown was innocent of any wrongdoing.”
“No matter what happened on that day, no matter how the whole situation went down, there has to be a change,” Cook said at the time.
Two years before that, Lebron James, Dwayne Wade and other NBA players wore hoods partially covering their faces in a social media post to protest the killing of another unarmed black teenager, Trayvon Martin. And two years before that there had been officially sanctioned protest in the NBA of anti-immigration/racial profiling laws by the Phoenix Suns and San Antonio Spurs, who wore jerseys with their team name in Spanish to show support for immigrant communities in their cities and states. But no protest in recent history has had the lasting impact of Kaepernick’s.
Kaepernick first sat down during the anthem in the 2016 preseason. For the first two games, his protest went unnoticed. Kaepernick wasn’t dressed to play during those games, but in the third he was, and the protest became making news. After his protest was conflated with anti-American, or anti-military sentiment (among the first twists of his protest to meet a narrative), he spoke with former Green Beret and one-time NFL long snapper Nate Boyer, and decided to take a knee instead:
“We were talking to [Boyer] about how can we get the message back on track and not take away from the military, not take away from fighting for our country, but keep the focus on what the issues really are. And as we talked about it, we came up with taking a knee. Because there are issues that still need to be addressed and it was also a way to show more respect to the men and women who fight for this country.”
As we examine the history of civil rights protesting in sports, it’s important to remember why this protest began, through the words of the man who started it:
“I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color,” Kaepernick initially said of his protest. “To me, this is bigger than football and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder.”
Later, responding to criticism that his protest was anti-patriotic, or harmed the American military, Kaepernick said:
“I have great respect for the men and women that have fought for this country. I have family, I have friends that have gone and fought for this country. And they fight for freedom, they fight for the people, they fight for liberty and justice, for everyone. That’s not happening. People are dying in vain because this country isn’t holding their end of the bargain up, as far as giving freedom and justice, liberty to everybody. That’s something that’s not happening. I’ve seen videos, I’ve seen circumstances where men and women that have been in the military have come back and been treated unjustly by the country they fought have for, and have been murdered by the country they fought for, on our land. That’s not right.”
In what appears to be a concerted effort by the NFL owners, Kaepernick wasn’t signed by any team after opting out of his contract with San Francisco following the 2016 season. Despite completing passes at a higher clip, posting more rushing yards, and placing in the top ten in the league with a low interception rate, Kaepernick received no contract to play in the NFL. Many analysts have ruled this a decision to blackball him over his political protest.
Since he first protested, Kaepernick has inspired fellow NFL players, NCAA athletes, high school athletes and even professional women’s soccer players to follow suit. Many of these athletes have been pressured by ownership, fans, pundits and more to abandon their protest. Kaepernick serves as a reminder to athletes across the globe of what can be taken from them if they’re unwilling to follow norms defined by owners, politicians, and their fellow citizens.
Kaepernick filed a grievance against the NFL, accusing the owners of colluding to keep him from playing. His lawyer, Mark Geragos, explained the decision, saying, “If the NFL … is to remain a meritocracy, then principled and peaceful protest — which the owners themselves made great theater imitating weeks ago — should not be punished and athletes should not be denied employment based on partisan political provocation by the Executive Branch of our government.”
Geragos was referencing the 2017 muddying of Kaepernick’s protest by Trump, who publicly attacked the civil rights protesting in the NFL, both on Twitter and most notably at a rally in Alabama in September. “Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a bitch off the field right now. Out! He’s fired. He’s fired!’” Trump said. Trump’s attacks on NFL protesters prompted further protest, including the cynical participation of some NFL owners. Dallas Cowboys owner Jerry Jones stood with players in a perceived sign of unity before later ordering them not to protest further. New England Patriots owner Robert Kraft issued a statement on the protests, saying, “I think our political leaders could learn a lot from the lessons of teamwork and the importance of working together toward a common goal. Our players are intelligent, thoughtful, and care deeply about our community, and I support their right to peacefully affect social change and raise awareness in a manner that they feel is impactful.” And most recently, Houston Texans owner Bob McNair said of the protests, “we can’t have the inmates running the prison,” sparking the majority of the Texans’ players to kneel at their next game.
As the owners, more players, the president and the public became increasingly involved in the situation, Kaepernick’s initial reason for protesting, the systemic oppression of people of color was swept away in the national conversation. Increasingly, the debate around the protests became part of the national debate over Trump. This subversion of the protest echoes the past, and raises the question, what are the laws that govern protest in America?
The American Constitution doesn’t specifically grant the right to protest. What it does grant is freedom of speech, freedom of assembly, and the right to petition the government. It doesn’t specifically mention freedom of association, but the United States Supreme Court found that association is in many cases the only effective mechanism by which people can exercise their freedom of speech in NAACP v. Alabama (1958). However, there are limits on peaceful protest, and freedom of speech in general. American governmental bodies are allowed to put limits on the time, place and manner of peaceful protest. This sets up an inherent conflict, where in the case of protests of systemic racial injustice by police and government, those being protested have power to deny the protest itself. These waters are murky, and have resulted in countless clashes between protesters and police.
The difference between protesting while representing one’s country as an Olympian, or doing so as an employee gets into the corrosive nature of capital. There are very few, mostly identity-based laws that bar an employer may from punishing or discriminating against an employee. There is no freedom of speech in the private sector, although there is in the public sector. In a work at will of the employer landscape, there’s very few exceptions under which an employers can’t punish or terminate an employee. However, over time there’s been a shift in the severity of consequences for athletes who engage in protest. For example, Kaepernick is the only recent example of a qualified athlete who has been clearly and publicly barred from his sport over his protest. It’s unclear if that ban will last, but it echoes previous attempts to silence protest from athletes.
Muhammad Ali was stripped of his boxing license after he refused to be drafted into the Vietnam War on conscientious objection grounds. conscientious objector. “War is against the teachings of the Qur’an. I’m not trying to dodge the draft. We are not supposed to take part in no wars unless declared by Allah or The Messenger. We don’t take part in Christian wars or wars of any unbelievers,” Ali said in 1966, describing his decision. Not only did Ali lose his boxing license, and thus his main source of income, but he was convicted of a felony. In 1971 that conviction was overturned by the Supreme Court in a unanimous decision. However, the decision found that because there was no reason given for why Ali was denied a conscientious objector exemption, his conviction had to be reversed. There was no further affirmation of his speech, nor the impact it had on his ability to earn money.
If your speech results in the inability to provide for yourself and family, is it free? Clearly there are lines beyond which a specific employer can tolerate speech from a specific employee, but far more often than not an employer can punish or terminate an employee based on any grounds, or without even presenting a reason. There are no clear boundaries between inappropriate speech that precludes someone from employment, and a human’s ability to express themselves with the expectation they’ll still be able to earn a living after doing so.
Even in cases where an athlete is under amateur status (and is nominally unpaid for their performance), they can be disciplined over speech and protest. In 1968, Tommie Smith and John Carlos placed first and third respectively in the 200-meter race at the Summer Olympics in Mexico City. When they stood on the platform to receive their medals, the two appeared shoeless, wearing black socks, and held up black gloved fists while the Star Spangled Banner played. The protest was largely interpreted as a show of solidarity with organizations like the Black Panthers, and other civil rights liberation movements of the time. Smith later wrote that the gesture wasn’t a “Black Power” salute, but a “human rights salute.”
The International Olympic Committee president Avery Brundage decided that this statement was unfit for the Olympics, and ordered that Smith and Carlos be suspended from the US track & field team, and kicked out of the Olympic Village. The US Olympic Committee refused to comply, and Brundage threatened to ban their entire track team in response. This threat led to Smith and Carlos being ejected from the 1968 Olympics. An IOC spokesman called Smith and Carlos’ protest, “a deliberate and violent breach of the fundamental principles of the Olympic spirit.” Brundage was the president of the United States Olympic Committee in 1936, and had no objection to the Nazi salutes at those games. In explanation, Brundage claimed the Nazi salute was the national salute at the time, which was acceptable in the context of international competition, whereas Carlos and Smith’s salute represented no nation. Brundage’s tenure as IOC president ended four years later in 1972, and was one of three goals of the one of the three stated objectives of the Olympic Project for Human Rights, an organization founded by sociologist Harry Edwards and joined by Smith and Carlos. To this day, Rule 50 of the Olympic Charter says: “No kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas.” Carlos and Smith returned home to support from many Americans, and widespread disdain, especially in national coverage of the fallout from their protest. In just one example Time magazine replaced the Olympic slogan “Faster, Higher, Stronger,” with “Angrier, Nastier, Uglier” to discredit the two runners.
Often, those that advocate free speech believe in it for themselves, not their political opponents. Accusations of anti-semitism and Nazi sympathy dogged Brundage, and may serve as an explanation of his preference for certain types of speech. People calling for unchecked freedom of speech frequently celebrate the firing of someone who said things they disagree with, but will fervently protest that treatment of their idealogical peers.
Capitalism decides the value of people based on their identity and ideas. That value is determined by many factors, but chief among them is perceived profit, and holding no concept or human right over it. This system rejects change because it knows where it leads. The fight for human rights and the victories it claims inevitably means the loss of capital for those that have accumulated the most of it, and its redistribution among the people, whether in the form of money or entrenched human rights that prohibit continued, expanding exploitation by ownership.
Some of the people who were disgusted with Kaepernick’s protest argued that people paid millions of dollars to play sports shouldn’t be complaining about inequality. But once again, they ignore the point of Kaepernick’s protest, which was expressly in solidarity with the oppression and brutality of people of color. There’s a difference between the power that a millionaire athlete commands in speech and action, and the reality-shifting power exercised by billionaires while forming society around everyone in their image. The former has a chance at creating change, while the latter institutes controls to maintain its position through every level of society.
No matter your politics, engaging with speech in good faith and not cynically recasting it into an existing narrative is essential to human development. Kaepernick went further in explaining his protest in August 2016, saying:
“I’m going to continue to stand with the people that are being oppressed. To me, this is something that has to change. When there’s significant change and I feel that flag represents what it’s supposed to represent, and this country is representing people the way that it’s supposed to, I’ll stand.”
“This stand wasn’t for me. This is because I’m seeing things happen to people that don’t have a voice, people that don’t have a platform to talk and have their voices heard, and effect change. So I’m in the position where I can do that and I’m going to do that for people that can’t.”
“It’s something that can unify this team. It’s something that can unify this country. If we have these real conversations that are uncomfortable for a lot of people. If we have these conversations, there’s a better understanding of where both sides are coming from.”
There will be more Kaepernick’s, and more consequences for them. And there will be more protest, and speech, that crosses boundaries or muddies lines of what constitutes protected speech, both in sports and outside of it. Because sports capture the imagination and dedication of such wide swathes of society, it will always be a hotbed and driving force in discussions of civil and human rights. To ignore or oppose this reality is intrinsically resisting ontological reactions to oppression and violations of human rights by those victimized by them, or who notice the victims of them wherever they go. Kaepernick and his fellow athlete protesters have often been called selfish for their stances by their opposition. Yet a consistent theme throughout these protests are tangible consequences for the protesters, who often aren’t faced with the exact same realities as those they speak out on behalf of, showing clear solidarity with the rights of others through their actions.