National Labor Relations Board Protects Free Speech Rights of Northwestern University Football Players  

Northwestern University has agreed to revise many of its restrictions on football players’ free speech rights after the National Labor Relations Board (NLRB) declared several provisions of its Football Handbook “unlawfully overbroad.”

The NLRB’s opinion and Northwestern’s policy revisions granting football players greater freedom of speech come at a time of intense controversy regarding the right of college athletes to express themselves. In the wake of student-athlete protests and demonstrations during the national anthem, the NLRB’s decision sheds light on how tightly many colleges control the expression of their student-athletes.

Under Northwestern’s Football Handbook, football players were prohibited from discussing “any aspects of the team, the physical condition of any players, planned strategies, etc. with anyone.” They were prohibited from discussing workplace grievances with third parties such as other players, lawyers, and family members, and Northwestern’s media policy banned them from speaking to any media member “unless the interview has been arranged by the athletic communications office.” Even when students did talk to the media, the policy mandated that students “[b]e positive when talking about [their] teammates, coaches and team” and “[a]void the negatives, as they breed discontent and trouble.”

Northwestern attempted to justify these restrictions on confidentiality grounds. As stated in its Football Handbook, “[t]he team is a family and what takes place on the field, in meetings or in the locker room stays within this family.”

While establishing trust and camaraderie are important to any athletic program, it is difficult to imagine how banning talk of “any aspects of the team … with anyone” furthers these goals. Rather than fostering self-improvement through robust discussions on college athletics, these rules appear designed to insulate the program from any criticism on any issue by tightly controlling players’ media appearances and requiring them to only speak positively about the team.

Fortunately for the players, the NLRB didn’t find Northwestern’s rationale persuasive and declared these provisions “unlawfully overbroad.” Northwestern then modified its rules to grant more free speech rights to the players in response to the NLRB decision.

This decision could have far-reaching consequences for other university athletic programs. Although the NLRB opinion applies only to Northwestern, it could be used to challenge restrictions on student-athlete speech at more than a dozen other private universities (the NLRB governs only private institutions).  According to ESPN, the decision “could apply to the football programs at the 16 other private universities that play in the FBS [Football Bowl Subdivision], including schools such as Notre Dame, Stanford and Baylor.”

In terms of student free speech, the NLRB’s decision is undoubtedly a step in the right direction. However, the free speech rights of Northwestern players are still severely burdened by a number of speech-restrictive policies that the NLRB did not address.

In its decision, the agency approved a social media policy that imposed sanctions for “inappropriate or offensive behaviors posted on social networking,” including photos “that contain full or partial nudity (of yourself or another), sex, racial or sexual epithets, underage drinking, drugs, weapons or firearms.” Such a ban would silence speech that, at a public institution, would be protected by the First Amendment. Although Northwestern is not bound by the First Amendment, it promises students free speech rights, stating that it “is committed to the ideals of academic freedom and freedom of speech.” Northwestern thus violates this promise by threatening its student-athletes with sanctions for their protected online expression.

While FIRE applauds the NLRB’s decision to uphold Northwestern players’ free speech rights, there is still a long way to go in protecting the expression of college athletes.