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tv   American Bar Association Annual Meeting - Sports Social Activism  CSPAN  August 29, 2018 8:55pm-10:34pm EDT

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it is evident to even the most come -- committed partisans that judge kavanaugh is supremely qualified for the supreme court. so stop playing politics and join us in supporting his confirmation. >> watch day one of the senate confirmation hearing for supreme court nominee brett kavanaugh live tuesday , september 4. c-span.org or-- on the legal app. steel moderated the discussion at the bar association's annual conference activismo on social and sports. >> believe it or not, 10:00 a.m.
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is early. i am happy to have the [inaudible] that we have today and our esteemed panelists and i want to say hello and thank you to our friends at c-span who are on today's panel. a little about myself. my name is michelle steel, i worked for espn since 2011. this is out of my purview. i do not normally delve into legal issues. however, in the last few years at espn, i have had the opportunity to cross into that many of theesult of stories i have covered. i had a little bit of it circuitous path to sports. before, i was a sports journalist, i was a business journalist so i worked at bloomberg television in midtown covering and i was stocks and bonds, i was a
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general business reporter. ofas working on the floor the new york stock exchange and guess what, stockbrokers do not want to talk about stocks. they want to talk about the mets them a they want to talk about the giants, they want to talk about the jets. the producers heard me talk about sports with these guys all the time and when tiger woods happened, that scandal, they assigned me to it and it turned into a think him i made the transition from being a business reporter into a sports reporter full-time and that is when the nfl lockout so that was my first experience covering legal issues but certainly as it relates to collective bargaining and the nfl. then i moved to espn and i covered the erin hernandez trial for two years. that involves driving up to his house one day alongside about a cars from law enforcement who went to arrest him, certainly one of the more surreal if not the most surreal day of my
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career was witnessing erin hernandez on the turf walk inving his house massachusetts and leaving his house with a white t-shirt and basketball shorts and dressed shoes and getting into that police car and i followed the trial all the way until it's very sad ending. i am going to let everybody else on this panel handle their introductions and talk to us this morning about their interest in this space, what they do, as an organization that they work for and how they ended --n sports and weather what their background is. >> i am the director of operations for the union that nba sports. i am very clear to say my son points out that i am the union, i represent the players, and not the league to my i make that
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distinction all the time. it is important to me. ido represent the players and take that seriously. to say that i am the director of operations probably does not give you a glimpse into what my title, what my role is all about. i am part negotiator, good fixer,r, problem solver, marketing consultant, and all things good governance because i am clear although i am the staff lead and head of this union, i report to the players. i report to any ticket of committee of players and a board of player reps. they are in charge. i take my direction from them and they give the vision in which i execute on. there is a lot of labor and monitoring the collective targeting agreement which you may have heard is there is an opportunity for either the to opt outhe players
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at the end of this season or it could expire naturally in 2021 and then there would be negotiations there. >> there is lots of opportunity -- there's lots of opportunity to make an impact on a league that is 20 years old, but really rich and awesome in this world. the athletes i represent our theyg, they are powerful, are beautiful and beautifully diverse. they are supersmart. i can't wait until we get into the issues and talk more about what my role is and has been, with regards to this topic. how i got into sports, that is interesting. i was a tennis player. i didn't play in college, but i happened to date a guy who was a student athlete.
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we were both at georgetown together. he went to professional basketball, i went into law school and stumbled upon title ix. not when i was an athlete, but after law school. i started a course called women in sports. honestly, my life took off from there. that is a little bit about me. >> how often do you have to correct people when they assume you were a basketball player? is that daily? >> it is pretty much. i can hit a free throw, my husband was known for three-point shooting. we have a son who is in that space, too doing well,. i'm a tennis player. >> good morning, everyone. i'm one of the late additions to the panel. >> not just playing the role of jim delany, big-time commissioner. >> i have met him, but that's as
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far as the comparison goes. i am a law professor at marquette university. i'm also executive director of the national sports large. since been at marquette august of 1999. i delight in telling my students that i never took a sports law course or it when i practiced law, i did some sports related matters, but i wouldn't call myself a sports lawyer at the time. i found myself practicing in the kilpatrick,ith towns and stockton. i characterize myself as a trade regulation lawyer. a lot of antitrust, non-technical, intellectual unfairy, trademark, competition, copyright law, general commercial litigation. after 5.5 years of practice, i had the opportunity to teach. colleged at south texas of law, a freestanding all --
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law school in houston. i talked to the dean about wasn't aaching, there chance to teach intellectual property. there was a more senior colleague who jealously protected those courses. he said what do you know about sports law? in high was an athlete school, had some sports related matters. a petition from 80 students demanding a course. in 1990, there weren't any sport law text that were out. the first one that came out was in 1991. now, i am a co-author of one of the leading sports law texts. to think as sports law as narrow, representing full athletes. now it covers virtually every single area of law. even though i didn't take a course, having a background in antitrust, intellectual property, and an economics background has helped.
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in high school i played football, wrestled, a little bit of baseball. track, i didn't last long. dashn the 100 yard - in those days. went -- i would have been the smallest person on the football team. i like to drink beer a little bit too much to get down to wrestle if i had been around 150. graves, i am kerry a partner at chapman and cutler in chicago. my practice is a little bit unique. it consists of basically being a lending attorney. i represent a broad range of basicallyd financing, consummate mergers, acquisitions, and a range of different types of acquisitions.
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in addition, i also practice sports demand and a number of my transactions constitute representing teams, representing financial institutions, and lending to a number of sports franchises. i also represent potential owners in a number of sports law matters. got intok about how i sports. because of my love or sports, i started writing about sports on the side. i decided i wanted to teach on the site, which is unique when you are a practicing attorney. for sports andon started writing, got a job teachings or slot at the john marshall law school in chicago, then i got a job teaching sports law at northwestern sports management program. my core academic area of focus equality racial
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inequality, i have written quite about that. i am a sports law contributor for sporting news. basically in a nutshell, that's what i do. i do finance, a little bit of sports finance. i teach sports law on the side. i am substituting for someone, as well. i am one of the late editions, so thank you for having me. >> welcome, everybody. i don't know if you knew it, but you are sitting at the most exciting panel here at the american bar association convention. [laughter] here's why, it has been like an episode of survivor booking this panel. specialt to send a thank you. it has been the most consequential year on record, certainly since i have been
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covering sports. i can say arguably in a generation, the most consequential year on record for sports in society in recent memory. it is reflective of how fluid this situation is. a couple of days ago, this is public record, we had a representative from the nfl pa who had to pull out because of negotiations between the league. -- for the league right now about what they will do about the national anthem. i cover the nfl. k remember where i was, wee the sundayseason, after that friday where the president said get those players off of the field. he referred to them by another slur. it turned into this story of the season. for theother storyline
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nfl this season. i will start there. politics and sports, certainly the law, has shown how interconnected they are this year. i'm going to start with you, terry. what is your personal experiences as it relates to social activism and your athletes showing their activism? the wnba, i think, is one of the more active, especially as far as the athletes are concerned, one of the more active leaks. -- leagues. >> the director of operations and my position description could not have prepared me for what might -- my star in this role may be. i had duties that talked about being a good financial steward, representing the players'
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interests, monitor the collective bargaining. soon starting in the role, it was 2016. there were incidents happening in this country that summer. the wnba place in the summer. there were police shootings. they were happening at different points in the country and the season. imagine getting a call from your players and it is a group of players, team after team, saying we have been talking about this, this is on our minds, we are very concerned. having learned that they understood the power of their voice, and the power of consensus, that is really important. a cannot be underestimated in
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union setting. for a group of people, athletes, to have been able to sort through the issues, to be able to share personal experiences, maybe they were similar family tragedies they were talking about, maybe they have law enforcement in their family. they were able to talk about that, bring all of that to the concerned,ay we are and we are supporting. we want to stand up for the victims in this case. we want to stand up for and show our support for black lives matter, and we want to show our support for the families of the police. at one point, the shooting turned on the police themselves. dallasn minnesota and were talking about this from a very emotional and passionate place. then the looping in the players on the other teams.
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this is the smallest lead, 12 teams with 12 players on each team. that is still sizable. is impressive that you can get to a place where all 140 plus players are on the same page. they said this is where we are, this is important, it is happening during our season. an opportunity to get this voice and spotlight it. like i said, nobody could have prepared me for that. what is interesting is they went to their teams, they talked with the league, we had conversations with the league. it was important that they wear a t-shirt. i don't want to say it was just about a t-shirt, it was their way of showing support so quickly and uniformly, that is a keyword.
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the t-shirt would violate the uniform policy. if you followed this story, you recognize what happened. there was tension there. the league said they were going to fine the players. i said don't do this, do not fine them. --t was on the books already the uniform policy is you are to wear from head to toe the produced by the sponsor at the time, at that time it was adidas. i said let's get them to make a shirt, let's figure this out. unfolding, we are going into the olympics that year. i said every team is in, give them this opportunity to do this
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before we go into the olympic break. we can talk about this off-line later. that usaic break meant basketball teams would be going overseas and playing. the wnba season would be suspended. that didn't happen. it seems fair, and i rarely use that word. it seems reasonable. the teams were the shirts, the league find them. i get a copy by email of every fine letter. imagine what your phone feels like vibrating that many times. i laugh at that now, but it really wasn't funny, because my players don't make a lot. -- violated the uniform policy in another way during that season would have
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been a $200 fine. i was getting fine letters that said it was $500. that felt really restrictive. that felt like there was a statement being made, and that they were not being supported. theot to the point where league rescinded that fine. there was a lot of pressure, a lot of public pressure. when i got the notice that league rescinded that fines, it was my 90th day on the job. i counted because i couldn't believe it. job, you are expected to say what have you accomplished in your first 90 days. who would have thought that would have been the journey that i took with them? >> did they rescind that fine steel as result of public pressure, or did the union filed a grievance? a grievance.t file
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the policy is what it is. there is a uniform policy. we were clear about that. was the ability for two of the teams early on to work with the lead and say we want to do this, and the league supported those teams, the other teams said we are all in. reasonable.at was shot in give them that that week leading into the then we would go off line and have a discussion about what were the other ways we could demonstrate or show support. it wasn't just about the t-shirts, it was the cause, whether they were supporting, and how they wanted to demonstrate that. i thought that was important. the league and the teams had negotiated for two of the teams
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to be able to do this. the other teams said we are all in, too. for an't get that far grievance. i think the public pressure was tremendous. i think that league -- the league took a moment and reflected on where they were, and what the position would be. it is interesting now, because the league has an initiative called take a seat, take a stand. if you have seen that commercial, it is powerful. it has some images out of 2016. i have mixed emotions when i see the commercial. there is a lot of pride i have. >> can you explain what take a seat, take a stand is? >> i don't know i can really speak from it, it is a league initiative. it's a way to demonstrate support for organizations the league has picked, it works in
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conjunction with the teams and picket sales, things like that. does the wnba have the same policy that nba has as it relates to the anthem? that everybody must stand? do you have any players that protested? >> words matter to me. protest, they demonstrated for a cause. i am serious about that. there was not a protest of the anthem. was a demonstration of support for a cause, and desire to give their voice and give some attention to this. 2016,lives matter in charlottesville last year, and
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players discussed a variety of ways they wanted to demonstrate their support and highlight what was going on in this country. there are images, you can see them online. sometimes the players have linked arms, because that was ,he message they wanted to send particularly around charlottesville, we are all in and we are together, we support this country and what is happening here. there are times that you will perhaps see that they took a knee, perhaps they also stayed in the locker room. there are a variety of ways they were doing it, all interesting. it was the result of them talking amongst each other and arriving at a point where they can believe this is where we
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are, this is who we are, and this is how we want to do it. >> is the end of policy at the wnba something that is bargained, agreed on, or is it they haveraq -- nfl, it in their game day right hand book? >> it is separate policies, it is not part of the cba. why you think about that, couldn't we just have conversations about it? is it something that you really have to get there? talk about it being hard of the collective bargaining agreement. when you think about that, are we there? we have to negotiate that, that is not a conversation? >> perhaps we are. -- perhaps we are. >> i know that you have studied this collective bargaining area. what are the legal issues governing, in your experience, governing an anthem policy.
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is it something that is collective? >> hominy labor employment law experts do we have out here? one of the things about sports law is there is room to be generous. i didn't do a lot of labor on employment, i am self-taught in the area. just enough to be dangerous. in general, under federal labor law, there's mandatory subjects of collective bargaining, defined as wages, hours, other terms and conditions of employment, typically working conditions. you think something like an anthem policy, this is where the anthem is played, wearing the club's uniform on the field of play. you look at it and it sounds is collectively bargained. it is up to the national labor relations board to say what is a
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mandatory subject of collective bargaining. i don't know that they ever actually resolved this issue. suffice to say, the union and player's view is they view everything as affecting working conditions. certainly a very strong, reasonable argument that this is something that should be collectively bargained, rather than unilaterally determined. the league and the clubs would say this is the management prerogatives. that's really the subject of the grievance that is pending. the collective bargaining agreements have been in effect for a while. this issue just arose. now, both sides are looking at it and going ok, what are we going to do? even under federal labor law, there is no requirement that the parties reach agreement. there is no provision to say if the parties can't reach
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agreement, then it necessarily would go to a neutral, like an arbitrator. unlike -- down in australia, i teach sports law every so often. under their federal labor law, if parties can't reach agreement, it goes to an arbitrator, were they select it. here, the duty is to bargain in good faith. that is largely procedural. it does not require either side to take an objectively reasonable position. neither side has to agree, it is just talk about it. at some point, the parties may say we are at a standstill. the clubs and the andue may, if they want to, if it has been an issue that has , the union hasle given its position, if they bargained it, they may implement that. then, the players can -- a
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number of things they might do, they might say this is unfair, we don't have an impasse, or there wasn't good faith bargaining. that is an issue that has to be resolved by the national labor relations board. then the players could exercise -- they could go on strike and say we will not play any games under this particular policy. that is just a very broad brush. >> going back to week three last year, i remember the first response from the nfl was we don't really have an anthem policy in the operations handbook. they said players should stand for the anthem, but it wasn't a directive. unilaterally change a workplace rule? i don't know if it hurts their
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case or helps the nfl pas, because they have filed a grievance. can that nfl change a workplace rule in a unionized workplace? >> it goes back to what matt was saying, is this rule something that is a mandatory subject of bargaining? >> which is unclear. >> it is unclear, although i tend to be of the mindset that it is clear. from my perspective, if you read a lot of these sports labor law decisions, the courts will look to see does it somehow impact a term of employment? in a lot of cases where there has been discipline because of a that is ats have said mandatory subject of bargaining. if you look at this new national anthem policy, which is currently now not being enforced. it is on hold because the nfl is negotiating it, or at least meeting in good faith to discuss
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it. decided that may players who are on the field must stand, but they have the option of being in the locker room. >> let's just say that they can't reach an agreement, and the nfl comes back and says it will stick with this numeral that came out. the new rule that they decided on their own with no input from the nfl pa was that players have the right to stay in the locker room during the anthem. if they were on the field, they would have to stand. if they didn't stand for the anthem, the teams would have the ability -- they should have the ability to fine, suspend, discipline the players. if they don't, then the league could fine the owners. what is unique about this situation is who made up this new rule? the owners.
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they say that they are agreeing, they can be fined if their players filing a policy. this is giving owners the incentive not to go out and sign the colin kaepernicks, because they may have to suffer fines from the league. that is one issue. going back to the mandatory subject of bargaining. alternately, this national anthem policy is a form of discipline. by theine has been held courts to be a mandatory subject of bargaining. i view it as a clear answer, although i can see the arguments. i view this as something that if p going to arbitration, i think it will be a mandatory subject. if you look at the history of this rule that players should stand, it was in the operations
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manual, it wasn't a requirement. -- the policy has only been around for a decade. it hasn't been in existence for the history of the league. it is another example of how now it is important to the league that everybody stands for the anthem, but it wasn't important 30 years ago. something very interesting to consider. >> you are right on that point. the national anthem and players being on the sidelines is a long-held tradition, if you define long-held as since 2009. before that point, players didn't have to be out on the field. there were certain teams, the bear's are one of them -- the , the sortone of them
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of -- individually there were a few teams who wanted their players on the sideline, but it wasn't a leaguewide think. it started in 2009. could the nfl, or any league in this sense, where this is an issue, could they argue that we are a private enterprise? our rules,siness, and we have the same private business latitude when it comes to restricting certain activities when someone is in uniform. if you are a private employer and there is no union, you can set the rules. you don't have to negotiate with any players, organization, or union. you can't do antitrust laws or any law in doing that.
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and the is a union employer wants to set a rule that impacts a mandatory subject of bargaining, they have to bargain in good faith with that union. everything we are talking about turns to whether or not this national anthem impacts a mandatory subject of bargaining. that's the first thing. the other thing is free speech of employees. you have probably seen all of these articles that players free speech rights are being curtailed because of the nfl' national anthem policys. the nfl is a private employer. everyone's first amendment a right we have in which we are protected from the government from infringing on our free speech. the nfl is a private employer,
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not a state actor. i have seen a few arguments that have said that nfl should be deemed to be a state actor, because they are getting public subsidies. a number of entities get state subsidies,or city but they are not becoming a public institution. that's the first argument i have seen. i have also seen because donald owners,eaks to the nfl because usually you don't have a president speaking directly, or yelling, at a league. there has been argument, maybe because of trump speaking to the owners, the owners are becoming an arm of the state, so they are really a government and curtailing the player's free-speech right. i think that is a flimsy argument, i have never seen that argument be successful. i think at the end of the day,
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the nfl is really a private employer. i don't really think first amendment claims will hold up in court. >> here's the thing, why do we get there? why do we get to the legal arguments and we have a league, there is a union that is well-established and organized, that has tremendous and terrific leadership. why aren't there the conversations? why did they get to this point? they could have avoided all of this mess. that's where i look at our league and how we are doing it, and arguing how we do it. we had the conversations, they , we are conversations all grown-ups and we can handle that. you have those at the beginning.
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avoidedrs that they that opportunity to engage a union.lling sports it is kind of telling, isn't it? i take great pride that my player leadership looks to engage and have that dialogue. not just amongst themselves, but with the league. it arms me to go forth and directs me to go forward and have those conversations on their behalf. that is really important. messotentially avoid the in which i think is seeming to evolve. ,here are a lot of situations that was gracious. i think it is reflective of this state of the relationship between the nfl players and the place if it does go to a
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where it gets legal right away, where that is the first option, to contact the union and general counsel to see what they can do in court. nfl,meone who covers the there is a high degree of mistrust between players and the league. i think that's why they do see it as their first recourse. now, they are talking. assuming that maybe they don't reach a resolution or decide to follow through with their anevance, do you foresee all alter -- receptive tomore protest in public space. >> i thin -- i think california may be a
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place where they allow protests, like in a mall. are largely but we in the federal labor area, not federal constitutional law for the reasons that she mentioned. there may be some states where the fact that the game is being played in what is considered to be a public forum. there might be some state laws that would be applicable. it is an interesting case in chicago, where a green bay packers fan had their tickets and wanted to come all decked out, but was told you can't do that. >> this guy goes all out. head, he is inse full packers regalia. he wants to stand on the bears sideline, because he is a bears season-ticket holder. >> he filed suit, claiming this violates his right. the court didn't submit --
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dismiss his claim. is athough the bears private entity, it is in a public forum. bearsare limits to the being able to say here is have you have to come dressed, if not, you are not getting it, regardless of whether you have a ticket. is this is aroblem national issue. it would be piecemeal resolution if a california clerk decided to do it here. it is something where there is a uniform policy. byre is nothing to be solved not talking about it, that is the first step. there is no legal requirement you have to agree. if there are discussions on both sides, there is greater understanding. hopefully they can reach an internal resolution of it. not everyone will be happy, that's the essence of collective bargaining. it is reach a resolution, no one is completely happy, but all
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things considered, it is the best deal for all concerned. the individual club owners or players that are not happy, it is like this is what it needs to be. there is alternative forms to raise these legitimate issues, but i think it needs to be done as a global solution, rather than piecemeal resolution, in various courts. courts and arbitrators are in the best position to resolve an issue. been the most -- you have been in your position since 2016. what about social activism in your league has been the most challenging part of managing these issues? how do you handle it personally? that -- arriving at consensus is my challenge,
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because it could be. i'm grateful that we have the support of other players associations. i think what has been a challenge from time to time is getting the attention, or getting the word out, the message of what they are doing and how they are doing it. sometimes it is reflective of the coverage of women athletes generally. sometimes we just don't get as much time or as much spotlight for on the court performance. what they are looking to do off the court may get even fewer minutes, that might be none. that is part of the challenge. they are so smart and thoughtful, and they are doing things in the criminal justice reform space.
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they have thoughts and opinions and are looking to do things on immigration policy. we have this new partnership vote.ocke the -- lock the to -- i have to talk about that. i would love to see that the things are there off the court, those initiatives they are involved in, to get the attention they deserve. , we are ok.hat >> do you think social activism -- we mentioned at the very beginning what is happening in ohio state with urban meyer. do social activism sports play out differently in a college context when it comes to players actually challenging some of these rules? certainly a different
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legal environment. it is not a collectively bargained situation. if we go back, one of the issues is you look at the ongoing antitrust litigation, where college athletes say there are billions of dollars realized particularly through football, men's and women's basketball, we should get a cut from the video games, the licensing, tv, those sorts of things. you don't see antitrust issues in the unionized professional sports context, because once there is a collective bargaining relationship, that effectively provides an antitrust exemption. you couldn't have all of the college athletes unionizing, because it is only at the private universities. for example, at northwestern, where they might be able ot unionize -- to unionize under federal labor law, they have not been able to do that
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successfully. most of the university's are public. it is outside of the public labor area. you get the difference between public universities that are subject to the constraints of the federal constitution. athletes would have first amendment rights. that can be a very difficult issue how courts work them out. in private universities, they are not subject to the constraints of the federal constitution. there might be some state laws that apply. then you can take it all the way down to the high school level. public high schools are subject to first amendment constraints, private schools aren't. -- there, you will have different policies, different schools. >> as long as we are in the college space, i wanted to bring up title ix. there is some -- i know this is extremely timely, given what has happened this week.
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in case you haven't been following the news, urban meyer is on paid leave from ohio state football. debate over to what extent title ix and ohio sexual misconduct policy should apply to the investigation into meyer's action concerning the former receivers coach, jack smith, his ex-wife now says she told urban meyer's wife and he should have known. do you know if title ix -- do you have a sense of whether title ix would apply to urban meyer? title ix requires reporting that concerns the programs or activities of the university. >> if you were to look at other
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schools, i would say we are in similar situations. baylor university, or the university of tennessee, they have faced a number of title ix lawsuits and investigations, not dealing with domestic violence, but with a number of sexual assaults, rape allegations, lawsuits, convictions in some situations where player athletes , for example the football teams at baylor, the coaches knew about the sexual assault. they had a duty to report it, and they didn't do anything. the effluent department knew about it, or should have, and didn't do anything. maybe within the past decade, there was a study done at the ncaa level. they looked at the number of athletic departments at these institutions. were the athletic department the
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ones doing title ix investigations? were they the ones that were running the sexual assault and domestic violence investigations at the school, or was it independent third parties? a lot of times, it was the f letter department involved in covering it up. title ix would apply. there are aly, number of investigations facing schools right now because of this. title ix should apply. for those of you that don't know, it prohibits any sort of sexual discrimination and institution that receives public funding, all colleges receive some sort of federal funding. whether it is a private institution or public institution. schools under title ix have a duty to report and investigate any allegations of sexual assault, domestic violence. a coach onby having
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allegedly committed domestic violence, and he is interacting with players, i read one headline that the domestic violence may have occurred on campus. you do have a potential title ix violation. >> doesn't it matter if the allegations involve a third-party, which would be his wife? >> even though it is not a student -- >> is it some sort of discrimination at school? i don't know all of the details. for example, where the athletes at risk, or something like that? i think it is sort of a new age question. to my knowledge, i don't even know if the court, or the ocr,
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the federal agency that enforces title ix, if they issue on enforcement letter or anything pining on whether or not there nonstudent, aa family member of a coach, to do some sort of action, investigation, what have you. was a clause in urban meyer's contract that he had a contractual obligation to investigate and discipline. i think that doesn't bode well for him, for ohio state right now. inhis contract extension april included language that required him to report any known violation of the sexual misconduct holocene. what do you think he will argue in his defense? once the factse, -- whether he violated his
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, itractual obligation seemed this was a provision placed into his contract for the first time in april of this year. these allegations relate back to 2015. the question is what did he know about this? ne of the things would be assuming there was going to be further discipline or contract, did he violate the contract provision? one of the things he said was he did not have a legal obligation back in 2015. , ane is an argument ethical, moral obligation to do something. one of the things that complicates it is although there were police reports filed, there were no charges that were brought. when you have a public employee, they have some new process
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rights, as well as contract rights. there are some real difficult questions of what exactly can we do. a public university does not have police policy, in terms of compelling people to come forward testifying under oath. they are all employees, they can say we want you to sit down and tell us what happened. novelk this is a rather title ix issue. what title ix is, it is a federal law. any educational institution that receives federal funds, any part of the university, it doesn't have to be the f t department -- the athletic department, service academies get federal funds. they are covered. in what -- what it is designed to do is provide equal educational benefits and opportunities for both sexes. if there is any kind of sexual assaults, discrimination that eitherdversely affect
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sex's opportunity to get an education. there has been an allegation where football players had raped, sexually abused female clearly comes within title ix's prescription. there is a question as to whether or not if you have a coach at a university committing inestic abuse off of campus that environment, whether or not that could subject the university. that is who is subject to title ix, not individual employees of the university. it would be the university that would be on the hook. i think this is potentially a case of first impression. when i saw some of the media council going where with the title ix violation be for the football coach?
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we don't know all of the facts. if this had occurred on campus, any domestic assault, it could have an effect on student athletes depending upon what was known or not done. my sense is it would boil down to what did you know, what did urban meyer know, and did this violate any contractual obligations? say we don'ty may want you around as our coach if you knew something and didn't do anything about it. there is a lot that needs to be investigated and fax me to come out. >> one of the reasons i bring it up now on a panel about social itivism in sports is because was personally stunned to see ohio state separate itself so quickly, and distance itself so quickly from a guy who is considered one of the one or two most powerful, most celebrated,
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coaches in the history of the sport. certainly one of the most celebrated current coaches in college football. i think it is indicative of the era we are living in. institutions, organizations, conferenceseagues, are a lot more sensitive and receptive to all of these issues as a result of the public being more sensitive and receptive to these issues. terry, you brought up adidas. whether adidas would make that shirt for players. did they end up doing that? glad you, but i am came back to that. they were not asked. i don't want to make this the company, ie, or any want to be truthful and fair in
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this. had we asked, i think they would have said it makes sense to us, why not? >> when you say we, you mean that league, or the pa? >> i was -- terry: i was using league universally. we as the players association did not, although i was really close. that would have been stepping out of my lane. they are not my corporate sponsor, i do not have that relationship with them. i'm respectful of that. i did think of really great slogans, topics, or catchy phrases that the t-shirt could upset. i'm a socially engaged athlete. there it is not even linked to one particular cause. it could have been something they rolled out at any time, at any opportunity where it was
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appropriate. for thet ask, but i am league to ask. i thought we could get there. i thought it was a reasonable request, i thought it made sense. >> the reason i ask is because none of these decisions are made in a vacuum. to socialtes activism, you cannot ignore the reality of the business, which is these are multimillion, billion-dollar businesses, and they need to take key constituencies into account whenever they make a decision. isbigger picture question how has social activism affected relationships with those key constituencies? whether they be sponsors, fans, whatever. terry: from where i sit, i am a
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woman, i am a woman of color. i sit from a place of privilege. i don't know how many times i will get to say that, or how many times you will hear somebody in my position say that in sports. i'm part of probably the most diverse part of the sports industry right now. my player membership has got to be the most diverse in sports. i think i sit from a place of privilege, because it looks and feels different for us. i think our fans are probably the most diverse in the sports industry, also. i'm talking anecdotally, i have not done the research. i would imagine i am close to accurate on that. sponsors, the fan base, the stakeholders, i think
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they look at it differently. differently then perhaps another sport. i think they understand where the players who happen to be women in my sport are, and they understand and align a little bit easier with the issues that are important to them. they get it. it hasn't been so much of an issue. there might be teams out there who will say when the players took the stance on black lives matter, or they took the stance around charlottesville, maybe that did affect some in our fan base. maybe it did, but i think largely it didn't. largely, it probably invigorated them. i can't speak to the league's initiative on take a seat, take a stand, but it is interesting they have gone in that direction to link up the philanthropy as a
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social activism that my player membership represents with who they are and what their corporate sponsors and other organizations want to bring into the fold. there is opportunity there, and it makes sense. i think i sit in a very unique place and a different place than perhaps other sports are. did you have to have a strategy for messaging, a communications strategy for messaging two different constituencies about this? >> what is funny about your question is when we announced partnership, i'm had a member who said you need a communications director. i thought maybe i do. maybe we haven't done this quite right, we haven't quite nailed it right. progress, in in that regard. i am learning as i go. there are so many hats that i
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wear in this position. look to the mess -- to message different a? no, i talk about who they are, where they are. i look to give voice to what the 144 voices are. maybe i need to do it differently since somebody came up and said you need to hire a communications person. >> did she give you her card? >> i know how to reach her. with additional resources, i wish i could bring her into the fault. but for now, i think we are doing ok. on the q anding up a period. what will happen is laura will have a microphone and will run around. while she is looking for that microphone, let's look into our crystal balls and predict here.
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how do you guys see social protest in athletics, demonstrations, applying -- playing out over the next 5-10 years? >> i think they are going to continue. you can't generalize every league or every sport. i wanted to go about -- i wanted to talk about tennis, were similar -- serena williams has been the face of social activism in tennis. they made such a difference for gender equality in that sport. i think it will continue in tennis. wrote a powerful op-ed, i don't remember the exact name, i think it was the new london times.
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she wrote this op-ed, she got endorsed by the prime minister. because of venus williams, wimbledon was the last of the grand slams to change it so the male and female winners got equal pay. i always hear men should get more, because they play more sets, what most people don't realize is outside of the grand slams, if you look at the lower tier tournaments, the female and male players play the same number of sets. there is a 20% pay gap. about thea study done 20% pay gap disparity in earnings in the lower middle tier tournaments with men and women. in that sport, i think you will continue to see social activism, i think the williams sisters will be the face of that. i encourage that, one of my interests is gender equality, especially in sports. i think athletes have realized the power of their platform.
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i think with social media, too. social media has just changed the world, if you look at the ways they are now versus 10 years ago, so many athletes are on social media. they can useat, their voices to communicate messages. we are able to learn in real-time about lebron james' i promise school. i think because of social media, it was hard to go anywhere to not read about i promise schools, versus if it was open maybe 15 years ago, maybe there would have been a short segment in the news. i think the power of social media will drive social activism in the future. social activism and the dissemination that is matthew: i agree. i think it is really a good thing that athletes are recognizing -- like it or not,
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they are role models at all levels, not just professional levels. college, even high school. they get more attention than the average person, so individually and collectively speak out on important social issues is incredible. the real issue is not so much -- there is a little issue with the nfl anthem protesters, is this being disrespectful to the flag, is this suppression by the owners for people wanting to talk about something that is important? the real question is, what is the appropriate forum? there is going to be a lot of disagreement, but i think over 5-10 years, there will be by way of discussion some legal decisions as to this would be an appropriate forum, this would not be. as with social media, there are
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a variety of mediums that are out there and that is really where the issue is now. ,hat, all things considered this is appropriate to convey this message, this is not. it will get worked out and it is good the discussions are being had. >> i echo largely the comments that have been made. i am so proud we are in a space and place in time where folks are more engaged. the fact that we are talking about folks who happen to play sports you are athletes, and in my case athletes who happen to be women, are leading the charge , i am just so proud. the work that serena and venus williams have done in their sport, i pray that it trickles down and surrounds and wraps around my sport and basketball, particularly around pay issues and equity issues and notions of fairness. i think that is just so
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important. i am just so proud that we are here and i am so proud that i can be in this position and be a part of that lead to serve opportunity for amazing athletes. i echo all that you guys have said. michele: for me as a reporter, when i noticed first a huge manifestation of player social activism resulting in a very significant business position and really showing their power was with the clippers and the sterling situation, when john sterling was found to be saying some pretty reprehensible race related things. the players responded and essentially said, we are not going to take the court. they realized the power that they had. the next thing you knew, you had dais sayingat a
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something that had never been said before, that he was essentially ejecting this owner from the league. i think that was a direct result of players' social activism on that front. i am going to open it up to questions from the audience. >> i am the official mic lady. we are going to switch to talkshow format. toave to hand you the mic make sure everybody can hear the question. players' a comment on social activism on the college level. i grew up in sports, my father played basketball for ohio state university. he was the starting forward and his teammates were john havel check and bobby knight. he went on to play for the philadelphia 76ers, and while he beat out his white counterparts who were power forwards, he was
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traded because they brought in and other black player and they could only have three black players at a time. he went on to coach, so he was in that wave of black assistant coaches. there was the white head coach and black assistant coaches who would deal directly with the players, so my dad is in that era. he coached western michigan in the late 1960's, and in the late 1960's, the black players and black students sat down during the national anthem. the students sat down, the players were on their court with their heads down and raising the black power fist. that was perfectly fine. after the anthem was over, they took the court and played basketball. 1968 -- third grade in pretend you did not hear that because i am pretending to be young -- that was ok in 1968. fast-forward. i wonder how black players would be perceived today if they put their heads down and raised the
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black power fist during the national anthem. i think it would be frowned upon. so while younger people are encouraged about what is happening with social activism and players, i am quite saddened because i came up through sports, i was raised in sport, and i see we have actually taken giant steps backwards. i -- i agree. there was not much of a question there, i just am soaking in the history lesson that you provided for us. , she isrespects describing what the action would be. i think that goes to what the decision-making was that surrounded that action and the messaging that was used to
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describe what was going to happen, because sometimes -- going back to the medications and strategy -- back to communications and strategy, if we inform those who seek to be in form and seek to listen -- because we are not going to touch everybody -- but if you get ahead of it and let people know and message out, this is who they are, why they are doing it, this is what it means to them, people then have the opportunity to buy in and say, i get it, i understand, and give them the opportunity to say, i respect that. in that respect, that is where we are and that is what needs to happen. if that still feels a little bit like it is a step backwards because we had to do that, i understand where you would say that. but that is where we are. i think that is where the power of social media comes into play and that is how we use our power for good.
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i am not on social media, by the way. but i understand in some respects how we can do that and how we can use that. there is some feelings about kind of a step back right now. i mean, let's be honest, right? we understand what she is describing, we understand that step back feeling and not really the forward motion, particularly at this time. but we will get there. i think again, using social media and looking to strategize and communicate and make sure there's young people understand that history lesson that you shared with us or something like that is so important, because they need to come from an informed place and need to speak that truth and not necessarily rely on those to do it for them. thank you for that, that was awesome. >> i can see where that feeling comes from.
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i had to cover a packers game where aaron rodgers was leading a movement to link arms during the anthem. before, espnsurvey surveyed almost 100 fans at random, a small size. the vast majority did not like that, did not want to see players linking arms during the anthem. i think it is a reflection of how politicized sports has become certainly in the last year. >> to that point -- i would almost wonder, what was the question that was given in the survey? what was the opportunity to inform -- michele: it was this or this on players linking arms during the anthem. >> we know how that goes. we understand. i think there was an opportunity missed -- and thank you for allowing me to share the words matter piece.
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to say, do you support, do you up or down players who link arms in protest is different from, this is what the players are looking to do today to shine light on x issue and they want to show the togetherness and demonstrate that. i think you would get more thumbs up. but maybe i live in a positive space, i don't know. michele: that's not a bad thing. >> my name is cody. a little back story here. i am probably one of the only people here are not actually in the sports industry. i am a sophomore in college. i will be attending texas tech starting in the fall. my goal is to walk on to the baseball team there. the school i was acted did not offer baseball and i did not get recruited as a senior or junior because i was injured both years. i would say politically i tend to lean more libertarian than anything else.
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i go by you do your thing, i do my thing. as long as we are not disrespectful to each other, we will be fine. i have seen some issues that have occurred with some of the players that have gone against the things that have occurred and a lot of times it has been out of context. for example, the villa nueva issue with the steelers. everybody made a big deal on the conservative side when he was the one steeler that went out and put a hand on his chest. it came out later that the rest of the steelers were standing in the hallway and most of them were being respectful, too, even the one guy who wanted to go out and stand. he served as an army ranger, so there is respect for that. certain players in the nfl before came out that the conservative media side was making more out of that then there was, came out against the way that villanueva handled that. eric reed was one of the ones that did it.
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my question is, for someone that does not necessarily want to disrespect his teammates but also does not want to disrespect the things that is the things that is of his family members have done in service of this country by showing something that could be perceived as disrespect towards the flag, first of all, from the players association standpoint, how would you handle that so you don't become a pariah within your team or league? from a legal standpoint, are there any possible repercussions that could occur from someone saying, he is being biased or prejudiced toward me by doing this? that maybe have not come up yet but could occur later if someone does something to be more hateful than what villanueva or someone else has done so far. >> from the players association perspective, it is kind of what i have been talking about. it is the need to have those conversations.
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might be too difficult conversations in the locker room and across your team. you just want to have them. they are important to have because you are sharing your perspective, they are sharing their perspective, and you are understanding where there is common ground. i don't want to overemphasize the importance of dialogue and conversation and communication, but i must in this sense because that is how you get there. around the black lives matter issue, i had players -- white, black, brown players who were talking about they have law-enforcement and military in their family and they, too, had the same concerns you are talking about. if the -- if we do this, am i somehow demonstrating disrespect for something that is part of my family fabric? yet i understand these issues and i understand the pain and concern from this community and this is important for me to stand up.
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when you take the time to listen , you can see where there is some overlap and some common ground. i know i am saying i live in a positive space, but truly that is how this played out, that is how they got there, because there are folks from all different walks and all different parts of the globe. when i talk about, i come from a truly diverse place, i am not kidding. so they were able to get there, and that is important. it is not a flip of the switch moment. it is conversations that have to happen over time. particularly in a student athlete in a college space, i think there is real opportunity for you to have those rich discussions that are important and that need to have an. i don't even know -- i will hand it off to anybody who wants to
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talk about the legal issues, but i don't know that you can get there about being accused of discriminating or bias. if i hurt your question right, i think that is what you were saying. i don't think your actions would even meet the legal standard that would be required in that instance. but if anybody else want to talk about that -- to your question, if you could rephrase it, is your question if the athlete does not engage in the protest, if he or she is discriminate against, what actions he has? for example, if your team decides they're going to protest, you don't participate, and because you don't participate your coach takes some sort of adverse action? >> coach, player, anyone that feels that maybe their title ix for civil rights was violated by me doing that. i know usually once you step on the field, there is an understanding that politics goes
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out the window and it is a game and you are going to do your thing. but when you are in the sidelines before the game, they have every right to claim that you publicly discriminate it against them. cari: here is one thing to keep in mind, which is unfortunate in a student athlete context. title vii, the civil rights act of 1964, prohibits discrimination on a basis of a number of classes, such as sex, gender, race, etc. that protect employment discrimination. matt talked about earlier based on the northwestern case, so far the nlrb has held that student athletes are not "employees." so you would not have that sort of employment protection. say, maybe at a stretch you could sue under a due process clause of the constitution if you felt somehow
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you were being discriminated against, but i don't know. just from hearing this, maybe you disagree, i think you would have a pretty weak case. if you just were benched because you were not participating, i feel like maybe you could file a claim with your school to some terri wast like what saying, it should not come to that because there should be discussion before you even felt there was adverse action being taken against you because you did or did not participate in a demonstration for social good. thank y'all for taking the time to do this panel. my name is pressed in pain -- my name is preston payne, a law student, rising 3l in texas. you brought up earlier two issues i thought were interesting.
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i am looking for the minimum threshold to be met. for instance, you were saying because trump had given instructions to the owners to do something that that was weak, right. i am not sure which class it was -- could have been constitutional law or criminal procedure -- but basically, it was saying that if a police officer or government agent or official receives information from a civilian, then that evidence is good, right. but if the police officer without a warrant tells a civilian to do something, they go out and get the evidence and the evidence is not admissible because your constitutional protections kick in because a government official influenced by civilian. so here, we have the president, a government official, instructing civilian owners to do something and that causes those civilian owners to do something.
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so i am wondering, what is the minimum threshold that has to be met for a government official telling civilians to do something and the civilians following those instructions? the second part is the subsidy stuff you brought up. you are saying because they are a private company, the subsidies that they receive, that would be a weak argument. but they are not just any private company, right, they are a national private company, so the level of subsidies they are receiving is much higher than a normal company. is there a minimum threshold of subsidies that would have to be met? cari: great question. michele: you just landed a law school exam on cari. cari: the first thing, i want to clarify when i gave my bio earlier, i specifically said -- or i did not say i am a con law expert. i am not a constitutional law expert at all.
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i am going to handle the government subsidy one first. there are a number of teams that we can all of knowledge that get -- can all acknowledge that get public subsidies. there have been a few sports teams outside of the nfl where there has been 100% private financing of their stadium. san francisco giants built the park that was 100% privately financed. anyway, in the nfl a lot of teams are getting public subsidies, but they are also getting money from the government other places. not sure if people are aware, but there used to be a contract -- i don't think it is still in effect -- where they were getting money from i want to say the marines. that is why the flags would be shown, there would be a big display before the game. so they are getting money from the government in a number of ways. but to my knowledge and the case
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law i have studied, there has not yet been a case where a private employer that is getting public subsidies becomes a state actor for purposes of first amendment protection. when the constitution -- again, i was not around in 1776, although i did enjoy seeing hamilton and i encourage everyone to see that -- when the first amendment was passed, it was really to prohibit the infringement of free speech by the government, by government entities. so the question of whether or not teams become governmental entities because trump is speaking to them via twitter or in a speech or at a rally in subsidies,via public i don't think it is a minimum threshold question. i think it is more they are not -- the courts don't to view private employers in that
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situation as a state actor. again, i am not a con law expert and perhaps i will be proven wrong. maybe, matt, maybe you disagree. matthew: no, i think simply the receipt of federal funds by a private organization does not make you a state actor for purposes of the federal constitution. merely because some club owners might agree with what president trump has said, there is not any government compulsion. he is saying, i think they ought to, get them off the field, or whatever. there is not any compulsion, so that does not do it. the one thing that is interesting -- it is part of colin kaepernick's arbitration proceeding, the grievance he has brought claiming he has not been offered a contract or the opportunity to try out with nfl clubs because of his social activism. so far there has not been the smoking gun uncovered in discovery. he has got to prove, rather than
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each individual club decided not to offer him a tryout or contract for whatever reason, he is trying to improve -- trying to prove there was agreement among clubs collectively not to do so because of his social activism. i have seen one of the theories they are going to rely upon is that president trump has exhorted club owners not to hire players were going to engage in this sort of thing. they are following on a concept that arose in antitrust law that was used successfully in baseball collusion cases in the 1980's, where there had been a very vibrant market for free-agent players after the master smith arbitration decision striking down baseball's reserve clause. the commissioners said, think about this, club owners. you are shooting yourself in the foot by driving up player salaries.
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parallelism or uniformity of action alone is not enough to establish an agreement, but certain factors could. that was a concept that arose in antitrust law to prove anti-competitive activity. the counsel for the players successfully relied upon it, the idea this was a departure of past practice from bidding for free-agent players individual clubs would have -- free-agent players. individual clubs would have an incentive to get the best players. i think it is different, the president saying something than if nfl commissioner goodell had said, not a good idea to hire colin kaepernick. we will see how the arbitration proceeding comes out. michele: there is one more hand in the back. i don't know that we have time, but if it is a quick question. >> i actually work for the nlrb.
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two comments i want to make. in terms of the colin kaepernick situation, i really believe -- i was not following it at first, but he himself was taking a social position and was disciplined for that. his coworkers stepped in in agreement with the social position but also to show support for his conduct, and that becomes protected concerted activity. in this caseoyers, the nfl, the players association -- i'm sorry, the nfl. creates this rule, even if it is facially neutral, if it was done in retaliation for the employees' protected concerted activity, it would be unlawful. that was my first thinking when i heard about the role -- about the rule. because the rule does have a disciplinary component, as you
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were saying earlier, it becomes a mandatory subject of bargaining. i don't know when the cba expires for the nfl, but you cannot make changes midterm contracts to mandatory bargaining. so the nfl would still be limited in to disciplinary action it can take against the players. that's my two cents. i'd know if you guys disagree, but that was my take on it. thank you so much. we have talked about everything as it relates to social activism today. as someone who is in an nfl locker room week in and week out, whether players have the legal right to neil, they almost uniformly believe they have the moral right. we will see how that plays out at the season continues. i want to thank everyone who took time out of their schedules to share their insights with us,
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so thank you. >> thank you, michele. [applause] [captions copyright national cable satellite corp. 2018] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] announcer: today on what would have been his 82nd birthday, a memorial service was held for senator john mccain in arizona state capitol. after the memorial service, senator mccain lay in state in the capitol rotunda, where mourners continued to pay their respects. this live from phoenix now here on c-span.
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>> thank you all for coming.
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keep the line moving, thank you. please keep the line moving.
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please keep walking, thank you. walking.ep thank you.
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please keep walking. thank you. announcer: over the next few days, c-span ran into coverage of several events on the late senator john mccain. tomorrow, a baptist church holds funeral services with former vice president joe biden among the scheduled speakers. and -- on friday, he lies in state at the u.s. capitol. on saturday, his wife, cindy hccain, lays a brief --wreat
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before a ceremony with speeches president george w. bush and barack obama. we have coverage to 10:00 a.m. on c-span. ♪ announcer: c-span's "washington thursday, aming up new book on the republican workers party, how the trump victory drove everyone crazy and why he was just what was needed. bernie sanders's former campaign manager talks about the future of the party. watch "washington journal" live at 7:00 a.m. eastern on thursday. discussion. announcer: c-span, where history
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