College Athlete Codes of Conduct and Issues Related to Freedom of Speech and Expression

The Drake Group believes there is a need to address constitutionally protected speech and expression rights of public college and university students who participate in intercollegiate athletics.

This need is highlighted by current national debates about the extent to which athletic departments should properly control athlete behavior, especially on social media and in connection with activism. Questions of control include whether requirements such as athletes standing during the national anthem, providing athletic departments with their social media passwords, and covering their body tattoos violate First Amendment rights.

Dealing with such issues requires institutions and athletic directors to understand the potential conflict between these rights and codes of conduct and the need to carefully consider and balance competing interests.

This Drake position statement strives to provide educational leaders with a decision-making framework for developing athlete codes of conduct, team rules, and model practices that educate athletes and coaches about important free-speech protections.

Key Points:

• Although the First Amendment only applies to public institutions, public and private institutions alike should honor First Amendment rights because freedom of inquiry lies at the heart of higher education.

• When considering restrictions on athletes’ viewpoints expressed by speech or behavior, institutions should answer these test questions: (1) does the restriction prevent a significant material disruption of the educational environment, (2) is the prohibited activity directed at others (individuals or groups) causing harm or creating a hostile or chilling educational environment, and (3) are other reasonable time, place, and manner restrictions available that could satisfy both the school’s interests and the athletes’ interests.

• Athlete codes of conduct and team rules should not conflict with institutional student codes of conduct and all team rules should require the approval of the athletic director to ensure protection of First Amendment rights and compliance with Title IX.

• Discipline for improper athlete conduct generally should follow the rule of gradually escalating discipline (oral warning, written warning, suspension, removal from program). For the most serious violations (sexual or physical assault, hazing, and other conduct prohibited by law) or proposed discipline that includes removal of athletic scholarships or program participation rights, investigations and adjudications should follow disciplinary processes established for all students.

• Athletic directors should identify as “red flags” and evaluate especially carefully any proposed restriction of athlete viewpoint expression that is justified by the following: (1) “protects the brand”; (2) is imposed in the name of “team uniformity”; (3) “advances team chemistry”; (4) protects a sponsor relationship; (5) “saves the athlete from making a mistake on a social media platform”; (6) “makes sure donors don’t get angry or diminish their financial support”; or (7) “promotes sportsmanship.” Athletic departments should consider whether athlete education programs, rather than restrictions of speech and other expression, are not the more appropriate response to such concerns.

• Athlete education programs on codes of conduct and First Amendment rights should occur annually and should cover unprotected activities (such as threatening speech or physical assault, bullying, hazing, sexual harassment, violations of law such as drug use or confidentiality of teammate medical information, etc.).

• Lawyers not employed by the athletics department should review proposed restrictions of athlete speech and behavior.

• Institutions should establish policies that mandate the reporting of violations of institutional policy (e.g., bullying, hazing, discrimination, harassment based on protected characteristics, hate or threatening speech or physical action against any individual or group that may create an unsafe or fearful educational environment, etc.), encourage bystander responsibility, and protect whistleblowers from retaliation.

Download the full position paper