Religious Freedom and Sports

Religious Freedom and Sports

To many people, the life of a professional athlete is one that seems absolutely privileged. Professional athletes make absurd amounts of money to play a game. In addition, they are treated as celebrities because of their status as professional athletes. They represent the best in their fields, with professional athletes making up only a very small percentage of total athletes for each sport. The best of the professionals have opportunities for endorsement contracts, and their revenue from those contracts can greatly exceed the money they get for actually playing their sport. However, professional athletes have burdens that other professionals do not have. They are expected to be role models during their private lives, as well as their professional lives. Public whims change, making it difficult to predict what non-normative behaviors the public will tolerate in their professional athletes, but the public does have an opinion about athletes. In addition, athletes are expected to engage in certain behaviors as part of their work lives. They are expected to work unusual schedules, including weekends and some holidays. In addition, they are expected to observe a code of behaviors related to their work lives that have nothing to do with their actual work performance, such as observing the national anthem. Some of these obligations conflict with the religious beliefs of certain professional athletes, and, at various times, these conflicts have created problems for the athletes, and for the teams for which they play.

Furthermore complicating the issue is that the interaction between professional athletes' religious beliefs and their work performance is a complicated one. Religious beliefs may mean that a player is unavailable on certain dates, but religious beliefs can also impact performance that is not actually required to perform one's job. Should those beliefs be viewed in the same manner? What about those athletes that use their positions as professional or college-level athletes to try to spread their religions? Other employees are generally prohibited from trying to spread their religion during work hours; should professional athletes be treated any differently? These problems are only going to grow. Foreign athletes are joining American professional sports in growing numbers, so that one can expect more and more conflicts between religion and American tradition, which is a huge part of the American professional sports environment. Therefore, this paper will consider the obligation that professional sports organizations have to respect and accommodate the religious beliefs of their employees, particularly professional athletes.

Background

One of the first times that the public really became aware of a player's religion creating a conflict with his life as an athlete was in 1965, when Sandy Koufax, a Jewish baseball player, refused to pitch in a game that fell on the Jewish holy day, Yom Kippur. Had this been a normal game during the regular season, it is doubtful that many would have paid much attention to Koufax's refusal to play. However, the game in question happened to be the first game of the World Series, and Koufax's refusal to play could have cost his team, the Brooklyn Dodgers, the World Series. His refusal to play resulted in an anti-Semitic backlash, though he played exceptionally well for the rest of the series. "Koufax's decision and his pitching brilliance remain a source of pride among devout American Jews, even those who aren't baseball fans."

Of course, not all of the conflicts between a player's religious beliefs and his professional career are as clear-cut as the Koufax scenario. While not all Jewish players have made the same choices as Koufax, his religious beliefs clearly support his refusal to play on Yom Kippur. Other athletes' religious beliefs may not even impact their ability to play their sports, but still have consequences for them. For example, in 1967, Muhammad Ali was stripped of his boxing license. This was because of his refusal to step forward for the draft for the Vietnam War, though he based his refusal on his religious convictions as a Muslim. It was three years before he was able to fight as a professional again, and was only able to do so in Georgia because it did not have a boxing commission. Ali was ultimately vindicated. In 1970, the New York State Supreme Court ruled that Ali was unjustly denied a boxing license based on his refusal to participate in the draft, and he regained his ability to fight.

One of the more recent conflicts between a professional athlete's religious beliefs and his professional performance came about in 1996, when the National Basketball Association (NBA) suspended Mahmoud Abdul-Rauf, a player for the Denver Nuggets, without pay when he refused to stand for the National Anthem. Abdul-Rauf's position was that standing for the National Anthem was a nationalistic ceremony, and participating in such a ceremony was prohibited by his Islamic faith.

In addition, Abdul-Rauf called the American flag a symbol of oppression and tyranny.

His conflict was resolved without resorting to legal action. Abdul-Rauf said that he would stand during the National Anthem and pray during that time, which caused the NBA to lift his suspension. However, his very refusal to stand sparked debate, with some expressing support for his religious freedom and others, notably Houston Rockets player Hakeem Olajuwon, a very famous Muslim NBA player, to differ with Abdul-Rauf's interpretation of Muslim beliefs.

Not all religious interactions with religion are by members of minority religious groups. National Football League (NFL) player Tim Tebow is known for prostelizing while on the football field. When he was a college ball player, he wrote Biblical references in his eyeblack. This practice has since been banned in college football, and is banned in the NFL, but now he writes those same messages on part of his uniform. The NFL dress code specifically prohibits such behavior, and other players have been fined for writing messages on parts of their uniforms, but it appears that Tebow has yet to be fined for this practice. There is no question that Tebow's actions are off-putting for a number of sports fans, but they have not been met with the same amount of outrage as when the player is expressing non-Christian religious beliefs. This could actually be somewhat alarming Tebow has been associated with Athletes in action, an evangelical organization whose mission is "to boldly proclaim the love and truth of Jesus Christ to every college athlete in the U.S. And the millions they influence."

In this way, Tebow's activities are about influencing the religious beliefs of others, while the other athletes mentioned were acting to preserve their own religious beliefs. Should this make a difference in the analysis of those behaviors?

Rules

Title VII of the Civil Rights Act of 1964 is the premiere piece of federal legislation discussing religious discrimination in the workplace. 42 U.S.C.S. § 2000e-2(a) discusses employer practices and states that:

It shall be an unlawful employment practice for an employer

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

Different circuits have established different standards for plaintiffs seeking to establish employment discrimination cases. In EEOC v. Union Independiente de la Autoridad de Acueductos y Alcantarillados de Puerto Rico, 279 F.3d 49 (1st Cir. 2002), the court explained that "In order to establish a prima facie case of religious discrimination based on a failure to accommodate, the plaintiff must show that '(1) a bona fide religious practice conflicts with an employment requirement, (2) he or she brought the practice to the [Union's] attention, and (3) the religious practice was the basis for the adverse employment decision."

Once a plaintiff establishes the prima facie case of religious discrimination, the employer must demonstrate that it either made a reasonable accommodation or that requiring it to make such an accommodation would create an unreasonable hardship.

The statutory and case law makes it clear that religious accommodations are required, but also that employers do not have to make those accommodations when doing so creates an undue burden on the employer. Of course, an undue burden for a small mom-and-pop operation will be judged differently than an undue burden for a major organization. The greater an employer's resources, the greater the burden they are expected to carry in order to accommodate their employee's religious beliefs. However, the slip side of that is that the more important an employee is to an organization, the more burdensome it might be for the employer to make the appropriate religious accommodations.

Analysis

One of the problems for professional athletes is that their Title VII religious discrimination cases look substantially different than the average religious discrimination case. Obviously, while the statutes prohibit religious discrimination, the courts will not simply rubber-stamp an employee's claim that something conflicts with his religious beliefs. Instead, the court will look at whether a bona fide religious practice conflicted with an employment requirement, whether the employee brought the religious practice to the employer's attention, and whether the religious practice was the basis of the adverse employment decision. Once that is established, the burden shifts to the employer to either demonstrate that they made a reasonable accommodation or that to do so would have been unduly burdensome. The problem comes when one realizes that many of these issues are very subjective, which means that the solution in one fact-specific situation would probably differ tremendously from the situation in another fact-specific scenario.

For example, when one examines the scenario with Sandy Koufax, it appears reasonably clear that, had the Dodgers chosen to take adverse employment action against Koufax for his failure to play in the first game of the World Series, that action would have been illegal under current employment laws. First, Koufax was known to be Jewish. While he had previously pitched in games on the Jewish Sabbath, Koufax had refused to pitch in games that fell on Jewish holy days. His employers were aware that he was Jewish and that he intended to observe his religion. Yom Kippur is well-known as one of the holiest of all Jewish holidays. Then the issue that the court would have to look at is whether accommodating Koufax would have been unduly burdensome for the Dodgers. While using one of the Dodgers' other pitchers may have created a burden on the organization, the reality is that the organization had other pitchers available to fill in for Koufax. Though Koufax was generally considered to be their best pitcher, the Dodgers did have people able to fill in for him. Therefore, it would have been difficult for the Dodgers to suggest that it would have been unduly burdensome to accommodate Koufax's desire not to play the game.

The next example from the background is the case of Muhammad Ali. Ali's religious beliefs led him to protest the Vietnam War and not step forward for the draft. Because of those religious beliefs, he lost his boxing license. In Ali's circumstance, proving that his actions were the result of a bona fide religious belief was somewhat more difficult. Islam was even more of a minority religion at the time that this occurred, and what people did know of Islam demonstrated that Islam did not have some type of blanket religious prohibition against engaging in wars. On the contrary, many Muslim nations engaged in wars. However, African-Americans practicing Islam in the United States frequently practice it in a different manner than Middle Eastern Muslims in Muslim-led countries. To suggest that the fact that Muslim countries engaged in war meant that it was not Ali's genuine religious belief that Muslims were anti-war would have been a difficult proposition. This remains the case despite the fact that Ali's refusal was very intertwined with political objectives to the war. In fact, Ali's stance appears to have been that it was against Islam to engage in an unjust war, so that his feelings about the appropriateness or inappropriateness of the war were intertwined with his religious convictions. However, the real issue is whether the boxing commission made a reasonable accommodation for Ali's religious beliefs. The boxing commission was not required to make any accommodations for Ali's religious beliefs. His beliefs did not actually require the boxing commission to do anything differently. Had they permitted him to continue boxing, there would have been no religious discrimination. The scenario may have been different if the boxing commission had required draft participation in its contracts with boxers.

If one simply contrasts how the Dodgers chose to treat Koufax with how the various state boxing commissions chose to treat Ali, it seems clear that members of either majority or commonly accepted religions or ethnic groups, such as Jews and Christians, may be given more leeway when their religious practices appear to conflict with performing their job duties. One interesting example of this, which seems to be a hybrid case of the Ali and Koufax decisions, concerns Mahmoud Abdul-Rauf's claims that it was religious discrimination for the NBA, particularly the Denver Nuggets, to require him to stand for the National Anthem prior to basketball games.

Like Ali, Abdul-Rauf's behavior did not actually inhibit his ability to perform his job, which was to play basketball. Whether or not he stood for the National Anthem, Abdul-Rauf's ability to play basketball would apparently be unimpaired. Abdul-Rauf was a practicing Muslim, and Islam does forbid nationalistic worship, though the majority of Muslims do not feel that their religion prohibits them from engaging in the National Anthem or engaging in similar activities, like saluting the flag. Therefore, the court may be able to question the genuiness of Abdul-Rauf's beliefs, though the argument that they were not genuine would be a difficult one for the Nuggets to maintain. That is because Abdul-Rauf had informed the Nuggets of his religious beliefs and they had quietly accommodated his religious beliefs and permitted him not to participate in the National Anthem until it became a media issue. When it became a public relations problem, the Nuggets discontinued the accommodation and Abdul-Rauf was suspended for failing to observe the National Anthem ceremony.

What is most interesting is that the Nuggets accommodation options were not the same as the average employer. For example, the Nuggets had no need to replace Abdul-Rauf. "Abdul-Rauf's sincerely held religious belief did not preclude him from fulfilling the essence of his employment duties. His primary duty was to play basketball. Once the National Anthem ended, Abdul-Rauf entered the arena and arrived at the Nuggets' bench prepared to play. Thus, the substitute employee factor is not a relevant component of Abdul-Rauf's accommodation analysis."

On the other hand, the Nuggets did not have a substantial number of accommodation options; they could either require Abdul-Rauf to stand for the anthem, or permit him to skip the anthem sequence. It would not have been difficult for the Nuggets to permit Abdul-Rauf to skip participation in the National Anthem ceremony.

However, the burden on an employer is not measured only by the difficulty to the employer in making the accommodation, but also the negative impact that such an accommodation may have on the employer. "Unlike most religious discrimination cases under Title VII, public opinion is a vital factor in Abdul-Rauf's accommodation analysis. In most cases, there are only two or three interested parties involved, including the employee, the employer, and possibly a substitute employee. In the context of professional sports, however, the fans sitting in the area, as well as the fans watching from home, can observe the employee-athlete adhering to his or her religious beliefs."

In other words, fan reaction can create a substantial hardship for both the Nuggets and the NBA. Fans who object to an athlete's religious practices can show their displeasure by not attending sporting events, buying merchandise, or watching games on television, which lowers ticket sales and profits.

In Abdul-Rauf's case, the potential fall-out from fans could have been very damaging to the Nuggets and the NBA. "Once Abdul-Rauf's routine of remaining in the locker room during the National Anthem hit Denver radio shows, numerous callers angrily noted that Abdul-Rauf had been willing to accept American prosperity. Their hostility demonstrated that they expected a quid pro quo from him with regard to respecting the National Anthem."

The Nuggets received over 200 phone calls threatening to boycott games if Abdul-Rauf remained with the team, and some fans threatened to cancel their season tickets.

Based on the extremity of the fan reaction, it seemed likely that, had Abdul-Rauf not agreed to participate in the National Anthem ceremony, both the Nuggets and the NBA may have faced tremendous economic hardship. "The NBA and the Denver Nuggets likely believed that such losses resulting from fan and advertiser reactions would translate into a greater than de minimis cost and an undue hardship. As a result of such retaliation, the NBA and the Denver Nuggets likely found it prohibitively expensive to accommodate Rauf's religious belief."

It is likely that a court would have agreed with their position, had Abdul-Rauf's case come before the court.

What becomes very troubling in this analysis is that the likelihood of economic hardship from a religious accommodation is going to be based on an athlete's choice of religion. For example, Tim Tebow is a well-known football player who is as known for his religious-behavior as he is for his football skills. In fact, Tebow is not among the best quarterbacks in professional football. He was a Heisman Trophy winner while a college athlete, but he is a third-string quarterback. Despite that, Tebow is extremely popular among fans. His jerseys and other memorabilia sell in a way that is comparable to the best players in his field, despite him lacking the skill to compete with them at this time. Tebow's practice while in college was to put Bible verses in the eyeblack under his eyes. That is prohibited by the NFL, which prohibits using eyeblack to send any messages, whether religious or secular. Tebow then began sending messages by writing on parts of his uniform. Though other players have been fined for sending such messages, Tebow has yet to be penalized for doing so.