'Permission To Speak Freely?' Power Vs. Freedom

When Toni Smith-Thompson protested, things were, in some ways, not so different than today. America was polarized and agitated in 2003 –– not by pandemic and police brutality, but by terrorist fears and a spiking war fever.

The United States government had determined, erroneously, as it turned out, that Iraqi dictator Saddam Hussein possessed weapons of mass destruction. And with each passing day, the U.S. drew closer to unleashing its military on the Persian Gulf.

It was in this run-up that Smith-Thompson silently expressed her concerns over the violent history of the nation. She began turning her back on the flag during the national anthem before her college basketball games. Because she played for tiny Manhattanville College, an NCAA Division III school in suburban New York, nobody noticed for months. When they did, in early February, her life turned upside down.

Toni Smith, as she was known then, became a 21-year-old lightning rod, seen by some as a principled citizen and by others as anti-American. During one Manhattanville game, a man marched onto the court brandishing an American flag in her face. Off the court, the senior co-captain received so much mail that it had to be funneled through the main college office. “The campus was collecting it by the bag,” says Smith-Thompson, now a senior organizer for the New York Civil Liberties Union. “Someone would go through it before giving it to me to make sure there was no anthrax or explosives in any of the letters.”

But if the political climate may be similarly heated in 2020, the reaction from college athletes –– and to college athletes –– who have been speaking out has been decidedly different. Where Smith-Thompson provided a rare note of on-court nonconformity, today’s college athletes have assembled a chorus of dissent. “It wasn’t even in my realm of possibility that my protest could have been a collective action, and that I could have said to a teammate, ‘Do this with me, and here’s why,’” Smith-Thompson says. “I work with young people now, and they are so much more tapped into how our world works. … They’ve been able to bust this notion that you surrender your individual identity as a condition for being on a team, and they’re challenging the idea that sports are a privilege rather than a fundamental part of our society where there’s really unequal access.”

It has indeed been a remarkable few months for college athletes, who have weighed in on issues directly related to and far afield of the games they play. The pandemic suspension of “normalcy” provided rare time and space for athletes, and the police killing of George Floyd in Minneapolis ignited much of their activism in the streets and on social media.

Liberated from the speech constraints of college athletic departments, players were free to make themselves heard. On June 22, Mississippi State running back Kylin Hill made headlines when he tweeted that he wouldn’t play in the state unless Mississippi removed confederate symbolism from its flag; within a week, the legislature voted to do just that. At Clemson, football players were prominent in campus demonstrations that led to the removal of John C. Calhoun’s name from its honors college. Campus activists at Texas credited Longhorn football players with forcing school administrators to strip a segregationist former professor’s name from a science building. And the University of Iowa let go of its longtime strength coach in response to football players’ public complaints about racial bias, allegations the coach denied on his way out the door.

These were just a few examples of athletes speaking out this summer, and the outcry wasn’t limited to individual campuses. Operating under the banner of #WeAreUnited, dozens of Pac-12 athletes pressed their concerns about the health, safety, and financial inequities implicit in being forced to take the field during a pandemic.

“Because NCAA sports exploit college athletes physically, economically and academically, and also disproportionately harm Black college athletes, #WeAreUnited,” stated the group’s manifesto, published in The Players’ Tribune on Aug. 2.

The group issued 17 demands, such as Pac-12 athletes sharing 50 percent of annual conference revenues, which were hailed as revolutionary by some and ridiculed as preposterous by others. But they started a conversation, one at times fraught with contradictions. Many of the same athletes supporting #WeAreUnited also signed onto the #WeWantToPlay group, led by Clemson quarterback Trevor Lawrence, which agitated for the football season to commence, despite COVID cases spiking in college towns across the country.

In any case, the remarkable aspect of all of these athlete actions was the complete circumvention of athletic department ground rules for player speech. The carefully constructed gatekeeper role of sports information departments, and the almost universal requirements for college athletes to seek permission before speaking publicly, whether via social media or mainstream news, were dispensed with. “We have never dealt with this kind of dynamic ever,” says Doug Vance, executive director of the College Sports Information Directors of America. “This is all new in how we deal with this.”

The athletes protested, tweeted, gave interviews, and wrote op-eds, asserting themselves as autonomous stakeholders in the college sports industry and the wider republic—something generations before them have rarely attempted.

What’s more, unlike Smith-Thompson, athletes this summer had massive support from their peers and from wide swaths of society.

“This has been building for a long time,” says ESPN writer Howard Bryant, author of “The Heritage” and “Full Dissidence,” which delve into the history of Black athlete activism. Given the billions of dollars that poured into NCAA programs before the pandemic, the notion of forcing unpaid athletes onto the field gave rise to a reckoning among not only those players, but the broader public.

“I think the culture has reached its ‘enough-is-enough’ moment,” Bryant says, “where you’re wondering, How on earth does [Clemson football coach] Dabo Swinney make $93 million? Enough already. You just reach an undeniable point. The money is so public that it’s just really hard to not pay attention any more.”

For the time being, the social and economic conditions surrounding Covid-19 have changed how athletes present themselves. They have challenged the public-facing orthodoxy of athletic departments, throwing out the rulebooks limiting social media communication, skirting the rigid controls over media relations, and opining on topics largely considered taboo just months earlier. In 2020, intercollegiate athletes have not stuck to sports—and they’ve dared the sports world to keep up.

Andrew Cooper, a Cal distance runner and #WeAreUnited founding member, says one of the best things the group did was to ignore the media relations instruction they had previously received from their programs. “Athletic departments push the narrative that the media is out to get you,” he says. “But the athletes have discovered their power on social media, and they want to use their voice. We’re Americans, right?”

The question now: Has this freedom summer merely been “One Shining Moment,” or a permanent shift in college sports’ power dynamic?

The answer depends on several variables, such as, pending governmental action on athlete economic rights and the willingness of future college sports participants to continue to speak out. #WeAreUnited has already been panned, for example, for being too quiet in its second month of existence. “Where have you gone, #WeAreUnited?” San Jose Mercury News writer Jon Wilner wrote last week. “The Pac-12’s player-driven movement that swallowed so much oxygen in early August apparently ran out of gas in September.”

The staying power of this free-speech movement will also depend, of course, on the powers that be in college sports, which have shown a unique ability, in the face of endemic scandal and in defiance of larger cultural trends, to keep their athletic labor pool at heel.

A potent example and potential cautionary tale for today’s athlete-rights movement is the string of Black college football player protests that took place between 1969 and 1970, according to Louis Moore, a civil rights and sports historian at Grand Valley State in Michigan.

At the University of Wyoming, 14 African-American players, eventually dubbed the Black 14, asked their coach if they could wear black armbands in their game against BYU to protest the Mormon Church’s policy banning Black clergy, only to be kicked off the team.

At Indiana, Iowa, Washington, and Syracuse, players protesting racism in their programs were similarly tossed from their rosters. The ousted players rarely saw playing time again, at least at the same schools.

All of these demonstrations came in the wake of the iconic black glove protest at the 1968 Olympics by two sprinters on the San Jose State track team, Tommy Smith and John Carlos.

Moore believes the NCAA’s reaction to that era of protest likely chilled college athlete speech for generations: In 1973, the association adopted a rule that prohibited schools from offering athletic scholarships for more than one year at a time.

“It was a very powerful thing (for coaches) to have, especially at the time, because if a player gets kicked off the team, boom, you’re in Vietnam,” Moore says. “So, a lot of players had to straighten up.”

And quiet down: College athlete dissent largely waned over the ensuing three decades. In the few instances where college athletes spoke out –– like Oklahoma linebacker Brian “The Boz” Bosworth and Florida State legend Deion Sanders ––  it was largely as a branding tool. (Bosworth’s 1987 Orange Bowl demonstration, in which he wore a T-shirt deriding the NCAA as  “National Communists Against Athletes,” was undermined by the fact that his grievance was being suspended for steroid use.)

In the late 1990s, though, as the commercialism of college football and basketball exploded, a seed of protest was planted, which gained little national notice at first. Ramogi Huma was a UCLA linebacker in 1995 when the NCAA suspended his teammate Donnie Edwards for accepting $150 in groceries from a sports agent. The incident motivated Huma to form the organization that became the National College Players Association a year later. As the years went on, the NCPA evolved into a valuable amplifier of the college athlete voice.

Athletes didn’t just start raising their voices this year; the current movement was a link in a chain of high-profile attempts to increase athlete empowerment over the past decade, among them the Ed O’Bannon class-action lawsuit over athletes’ name, image, and likeness and the Northwestern football team’s ultimately unsuccessful efforts to unionize. Huma served as an advisor to O’Bannon’s legal team and was a driving force in enlisting Northwestern quarterback Kain Colter in his 2014 effort to unionize NU’s football team.

“I think it is great that college athletes are finally finding their voice,” says Colter, who currently works as a labor activist in his home state of Colorado, “and I hope through collaboration they can come up with a great solution."

While both The O'Bannon and Northwestern cases were about economic rights rather than speech, they broadened the parameters of what college athletes talked about. During the 2014 NCAA Final Four, UConn guard Shabazz Napier was asked by a reporter about the Northwestern case, and about players getting paid. “Sometimes there’s hungry nights where we don’t have enough money to get food,” Napier told the scrum of reporters. He said he noticed his jersey being sold, and “you want something in return.”

Within weeks of Napier’s comments, the NCAA amended its restrictions on athletes’ meals and fueled the public case, then being litigated in the courts by O’Bannon, that athletes should at least be entitled to remuneration from their right of publicity.

At the same Final Four, Wisconsin’s Zach Bohannon was quoted in the New York Times about  the hypocrisy of NCAA amateurism rules. “With all of the corporate sponsors,” Bohannon told the Times, “it's like a professional league, only the student-athletes are amateurs, and we don't have any say in the process.''

Bohannon had reached out to Huma during his time at Wisconsin, and began preaching about the need for reform, first to teammates and  eventually to the media. “No matter how you slice it,” he says now, “whether from a conservative viewpoint of just business economics –– or a liberal, civil-rights outlook of so much money being taken from an unpaid African-American workforce to pay these Caucasian coaches and athletic directors ––I knew I was fundamentally right.”

But at the time, he says, “I got so much pushback from the media and fans who said I didn’t know what I was talking about.”

Bohannon told Huma he would help him out any way he could to find the next Kain Colter to carry the torch for reform. Which he did. His senior year he introduced Huma to a bright, talented freshman, Nigel Hayes. Like Bohannon, who wrote a column for CBS Sports while a player, Hayes was media savvy, and as the face of the Badgers his final two seasons, he rarely missed an opportunity to discuss what he saw as the NCAA’s unjust economic model.

Hayes wanted to be more than just a voice. He also was a plaintiff in Shawne Alston’s class action suit against the NCAA over its capping of athletic scholarships, and he lobbied his fellow players in an effort to hack the system. As Hayes first revealed during a 2018 panel discussion at the Aspen Institute, he had attempted to organize a team boycott of Wisconsin’s 2016-17 Big Ten/ACC Challenge game against Syracuse, but couldn’t find unanimous support. Had this been successful, Hayes says, he had planned to organize a sit-out of an NCAA Tournament game.

The failure of other players to get on board frustrates him to this day. “Once people graduate or move on, they say, ‘I wish I would have done more and said more,’” Hayes says. “I said, ‘I was trying to tell you while you were here.’”

But Hayes realizes activism is not for everyone. “Change doesn’t happen because there is a conga line of people waiting to go against the grain,” he says.

A couple of years earlier and a few hundred miles to the southwest, college athletes did threaten a boycott--though not for economic reasons--and got results. In 2015, members of the Missouri football team, urged on by Black student activists, joined a campus-wide protest triggered by a series of racist incidents. Activists demanded the firing of the university system president, Tim Wolfe. The players vowed not to play an upcoming game against BYU unless Wolfe was removed. They got the support of their coach, and two days later, Wolfe resigned.

No story of the college athlete voice would be complete without mentioning the impact of a former University of Nevada quarterback named Colin Kaepernick. As Toni Smith-Thompson points out, “across schools and across regions and across boundaries,” college and high school athletes knelt in solidarity with his protests of police brutality. “Colin Kaepernick’s protest was really important to draw people’s attention to the possibility of, ‘I can do this, too.’”

The prior decade’s events set the stage for the explosion of activism in 2020. That’s not to say the athletes were perfect, or that they have won any kind of final victory. Women athlete voices have been drowned out as football has dominated the discourse.

Bohannon worries that the athletes muddied their message, with the goals of #WeAreUnited and #WeWantToPlay appearing to be at cross-purposes. “There were so many cooks in the kitchen, and so many conflicting views that never correlated down a converging path,” he says. “The biggest challenge this issue has always had is that so many college athletes are siloed, and they look at it from a narrow personal standpoint--I want to win a conference championship, or, I want to increase my draft stock--and they don’t see the big picture.”

Beyond the college sports world, the pendulum of public opinion continues to oscillate: Black Lives Matter, a major impetus for the athlete activism, polled well during the height of the protests, but its standing has slid more recently.

Similarly, the fact that the Big Ten and Pac 12 conferences appear to have capitulated to outside pressures on playing this fall suggests that athletes’ health, safety, and economic messages might not be as salient a concern to the general public as the games themselves.

John Feinstein, the author of several bestselling books on college basketball, wonders how hard athletic departments will push back once players settle into their routines. “The question will be if the colleges clamp down even more or will they accept the fact that it is 2020 and the country is different,” he says.

College coaches have used their school’s sports information offices as a tool to suppress speech, and in the process control players, by requiring them to seek permission before speaking to the media. It didn’t used to be that way, recalls Feinstein, who covered college sports through the 1980s and ‘90s for the Washington Post. “If you wanted to talk to a player before or after practice, you just did it,” he says. “It was a given after a game that you had locker room access.” Feinstein says he used to taunt Maryland men’s basketball coach Lefty Driesell by including the phrase, “sitting in his dorm room, comma,” in his beat stories.

Athletic departments see the restrictions as helping athletes manage their time, and ensuring they’re not being hounded by gamblers and agents. In the past decade, many team rulebooks have tightened interview restrictions while adding strict regulations on social media use. But the legality of these rules is now being challenged, explicitly.

In an article published this month in the Nebraska Law Review, Frank D. LoMonte and Virginia Hamrick analyze speech restrictions in Division I college athletic department rulebooks and characterize them not only as extreme, but likely unconstitutional. The paper finds college athlete rights squashed by policies that restrain them from speaking to mainstream media or speaking out on social media—even about abuses in the system.

“Is this legal?” the paper asks. “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.’”

They point to the Northwestern case. In its ruling on the complaint, the National Labor Relations Board’s general counsel identified several rules that Northwestern had removed from the handbook while the complaint was pending, including prohibiting press interviews without pre-approval, and directing athletes to avoid negative comments, and noted that they would violate federal workplace law.

A solution to part of this conundrum may be looming, in the form of state laws –– and potential federal ones –– granting athletes full rights to sell their name, image and likeness. If their economic clout grows, athletes’ voices might, too, because NIL, and the ability to hire representatives to negotiate sponsor deals, would have ripple effects.

“The first step is giving college athletes access to legal representation,” says Cooper of #WeAreUnited. “Access to representation is a constitutional right that is not afforded to college athletes.”

With union reps, agents and lawyers on their side, athletes will have advocates not just for their earning power but for issues they care about.

If the pandemic has taught sports anything, it is that tumultuous times heighten contradictions. How those contradictions will resolve in college sports isn’t clear yet. But as the action has moved to the field, to collegiate conference boardrooms, and DC cloakrooms, player voices are heard less and less.

“I think once the season starts, that’s the hope of the coaches and athletic departments, that it’s going to quiet down,” says Moore. “When players are on campus, they’re exploited financially, but they get a lot of gifts to keep their minds off of revolting. And right now, these students are under so much stress.”

Indeed, as school has re-started, some of the summer’s most vocal college athletes are coping with a bizarre new campus world. “No one is itching to talk to the media right now,” says Cooper of his fellow #WeAreUnited activists. “You can imagine how overwhelming this has been to people, dealing with the fact that school is starting in the middle of the pandemic, and the fact that it feels like an apocalypse with climate change revealing itself.”

So the question remains: Was the sound and fury of this uncertain, tragic spring and summer an aberration?

Bryant thinks the effects will last, that there’s something in the air — besides a deadly virus and wildfire smoke. “There’s a more challenging, more entrepreneurial sports spirit in the last decade than in the previous 30 years,” he says, citing, among others, the emergence of the XFL, the WSL women’s soccer league, and the Professional Collegiate League in basketball set to launch next year. “There is a subversive David spirit to take on these goliaths,” he says.

Nigel Hayes, meanwhile, is holding on to his dream of a March Madness moratorium.

“You get to the NCAA Tournament in 2022,” he says, “and you’re in the national championship game, and one of those teams goes, ‘We should probably change some things before we play.’ It will be done in 36 hours. Players just don’t understand the power of boycotting. What do you think Mark Emmet would do if at the national championship game, one of the most-watched games in sports, players said they weren’t going to play until ‘we change things’? They would have a document ready to sign before the warm-up clock.”