Should US National Team Players Be Required To Stand For The National Anthem?

Still waiting for @don gagliardi to respond.

 

This policy is completely legal, despite what a litany of armchair lawyers in this thread wish otherwise.

 

You admit I'm correct about USSF being a private entity not being the end of the inquiry, whereas previously you said that the First Amendment only restrained Congress. We're making halting progress.

Your post remains confused beyond that point. Bank of America does not style itself as a representative of America. (It used to be Bank of Italy, by the way). Neither does Club America, for that matter. Nor did U.S. Steel. But Sunil Gulati of USSF makes public proclamations about how it is an honor for soccer players to be representing their country when they play for USSF. That is qualitatively different behavior that goes far beyond merely having "US" or "America" within a private entity's name.

Additionally, and this is as important as public financing to the analysis, the federal government plays along with USSF's charade that it represents the country, thus seemingly ratifying the pretense after the fact even if not authorizing it beforehand (which maybe it has done). The White House, for example (and it is merely an example), fetes USSF women soccer players when they win titles while not doing likewise for German men. We can deduce precisely why: because the women represent this country. This, in your phraseology, imbues the team with state influence.

If you actually read the case law, every case is different. And your citation to NCAA v. Tarkanian is really not on point to the peculiar case of USSF.

 

I have a life outside of Big Soccer. Implying force for your argument from a delay in responding to you is an extraordinarily weak, and this instance entirely misguided, form of argumentation.

 

People used to say the same about the Defense of Marriage Act.

 

They can pass all the regulations they want, conflict only arises if they try to apply punishments that are beyond what FIFA requires. Which I can bet will never happen.

 

(1) I never disputed that a private entity can be restricted by the first amendment, so long as government is sufficiently involved with the speech restrictive policy at issue.

(2) The fact that a national team "styles itself" as a representative of America does not render that team a government actor. The inquiry is whether the government itself is causing the restriction, not whether Sunil Gulati "makes public proclamations about how it is an honor for soccer players to be representing their country when they play for USSF." Nothing suggests he is under government control, which is what matters.

(3) Public financing is not enough. Many, many cases state this, including NCAA. Visiting the White House likewise does not render the USSF under the White House's control. The notion that it does is a borderline frivilious argument that merits Rule 11 sanctions.

(4) I agree "every case is different," but that's not a persuasive argument for any position. No good precedent comes anywhere close to rendering the USSF a government actor. Your second conclusory statement that NCAA is "really not on point" is not convincing.

Sure, the law always changes, the constitutional law in particular is subject to the political whims of SCOTUS more than any other area of law, but there is a huge chasm between existing precedent and your position. When I was with the judiciary, I would have considered your argument so meritless to be close to sanctionable.

(5) Stick to slip and fall cases.

 

Let's start with (5). I've ignored your ad hominems to this point. I'm really not understanding your personal animosity, but it detracts from your credibility. Next time you act like a jerk, I end the conversation.

As for (1), yes, you did indeed dispute that a private entity can be restricted by the First Amendment. You asserted it was limited to Congress.

(2) The fact that USSF styles itself as representing this country, while profiting from fans who fall for the fiction, renders its officials subject to criminal prosecution for impersonating federal officials. So, either Sunil Gulati is telling the truth when he says that USSF represents this country and by extension the federal government, or he's not and he's flirting with criminal prosecution for taking our money on false pretenses.

(3) Public financing is not enough, but it's not required, either. It's public "entwinement" that is the standard for applying the Constitution to private actors. Representing the country with the blessing of federal officials is entwinement in my book. You may disagree, but that is not the standard for "close to sanctionable." My argument is manifestly made on the basis of existing law and a good faith argument for the extension thereof. Your opinion otherwise is no more forceful because you were once "with the judiciary" in some unidentified post. Judges disagree with each other -- and their staffs -- all the time.

(4) Glad you agree that every case is different. I never expected that I would persuade you to my point of view on the anthem policy. But you have moved very far in a short amount of time from your previously-stated legal position that only Congress is subject to the First Amendment. And once you acknowledge, as you now have, that the First Amendment can apply to private actors, and that every case is different, you leave open the possibility -- however remote in your own mind -- that a judge or several judges will agree with me, and therefore that I am right, after all, that USSF's anthem policy is unconstitutional.

 

(1). I was quoting the First Amendment to make the point that government action is necessary for First Amendment restrictions to kick-in. The previous poster suggested that the actions of USSF alone is sufficient to do so. This is wrong.

(2) I'm glad you made the ridiculous and delusional assertion that Sunil Gulati is risking criminal sanctions by heading USSF. I guess everyone associated with the USA Olympic Committee should retain criminal lawyers as well. Hopefully the leaders of the National Spelling Bee are also well-represented.

(3) What counts as entwinement "in your book" is not sufficient. You must have evidence that the government was a substantial factor in implementing the policy in question, which is absent here. USSF is a private entity sanctioned by a Swiss private entity, and is not controlled by the USA government. So you lose.

(4) We were debating about the state of law today, in 2017, not how it might change one day (however unlikely).Speculating that a judge might someday agree with this bizarre expansion of the state actor doctrine to private sports entities that privately agree to represent national associations is neither interesting or persuasive.

I've literally never blocked anyone before on this website, but continuing to engage with these meandering, unsupported positions not one of my interests, so lets just end the conversation.

 

The US national soccer team represents the country in the same way that the Kansas City Royals represent the city of Kansas City. That doesn't make the USSF an entity of the US government any more than any American pro club team in any sport is a public entity (aside from the Green Bay Packers). As a private entity they have the legal right to enact this rule, as a federation managing teams that represent the country on the global stage they have unquestionable moral authority to choose to do so.

 

It's not good form to go on a five-paragraph rant and in the 5th paragraph say you are ending the conversation. You can block me if you like, but I will make my retort to your latest assertions. Then our conversation will be at an end.

 

Sooo...if a US-based company with a Russian owner docked his employees' pay if they didn't recite the Russian pledge every morning, that would be cool? Because that sounds a lot like a civil rights violation.

 

That's fine. You can have the last word.

 

First, standing for the national anthem is directly related to the job duties for the national team players, which renders the rule reasonable.

Second, what civil rights violation are you alleging the Russian owner's policy violates?

 

(1) No. You are offering a revisionist explanation for your prior, and admittedly legally erroneous, post, which speaks for itself.

(2). Insofar as I know, the National Spelling Bee does not purport to "represent this country" in international completion, so your snark is mis-placed. As for the US Olympic Committee, it would be subject to the same analysis insofar as it purports to represent this country.

Conclusorily labeling my assertions about potential criminal penalties for impersonating federal officials "ridiculous" or "delusional" does not assist in the analysis. If you review Sunil Gulati's public statements about it supposedly being a great privilege for players to represent their country, not to mention the promotion of USSF as "One Team. One Country." in its ticket-selling promotions, against the applicable federal statute, 18 USC section 912 (which I quoted verbatim earlier in this thread), you will see that he is on shaky legal ground insofar as USSF is merely a private entity with no entwinement with the federal government.

I could be mistaken, but it is my understanding that running a national team, whether in soccer or the Olympics, is often conducted by a ministry of sport. The fact that the United States, unlike I believe many other countries, outsources this function, like many states do the operation of prisons, cannot be allowed to obscure the fact that "representing one's country" is an inherently governmental function. Our military are paid federal employees. So, too are our ambassadors and other foreign service personnel. We should be allowed to pierce the corporate veil to determine that athletes who truly represent their country -- as opposed to a mere 501c(3) -- are entitled to enjoy constitutional rights which are their birthright as representatives of their country.

(3) See #2 above.

(4) You are again misguidedly in error about the law. A hypothetical attorney representing Megan Rapinoe in a lawsuit today is allowed to argue that the law should be changed in her favor. Rule 11 of the Federal Rules of Civil Procedure sets the applicable standard governing imposition of sanctions and it specifically allows (i.e., precludes fining attorneys for) "non-frivolous argument for extending, modifying or [even] reversing existing law or for establishing new law." (Emphasis added).

 

You only raise one new position, so I'll respond to that.

The fact that some governments choose to implement a sporting ministry has no affect on the USSF's standing, and does not mean that the US government out-sourced a traditional government function to a private entity. The US government has never traditionally commandeered sporting associations (national or otherwise), and a sporting association has no governmental power over individuals which would subject it to constitutional restrictions, unlike a private prison.

The fact that some countries may have sporting ministries is irrelevant to United States law, or what constitute traditional government functions in this country. The fact that the government of Venezuela has nationalized agricultural production does not make private farming an outsourced traditionally public function in the United States.

 

No one is contending that farming is inherently a government function, regardless what Stalin did with the kulaks.

My point is that "representing the country" is necessarily a governmental function, whether or not outsourced. It is a matter of agency. If one is not authorized by the country to represent it, then one cannot in fact be its representative. Representing the country is thus intrinsically the province of government and can only be conducted by the government or one operating with its assent.

 

I don't believe that Kansas City is sovereign. Either of them. So I believe that is a material difference. May explain why no one stands (or kneels) for a Congressionally-enacted anthem prior to Kansas City Royals games.

 

I understand this is your core view. But there is no legal or rational support for it. I can style myself a representative of the United States people with no legal problem--so long as I am not purporting to be an actual employee or officer acting with the power of the federal government. The United States, as a "people" and "land," is not coextensive with the federal government. One easy example--when I'm standing on my own property, I am in the United States, but I'm not on federal government land.

Getting to the root of the issue, the purpose of the constitution is to restrict government power, because the government has the ability to eliminate liberties. But the USSF cannot imprison people, raise taxes, raise an army, implement zoning laws, confiscate property, or otherwise subject individuals to their will outside of a voluntary contractual relationship. The USSF can't even stop any other organization from creating an up-start national soccer team program. There is therefore no good rationale to extend the constitution to the USSF.

Now, you may take the viewpoint that "voluntary" contractual relationships are a fiction (perhaps in the employment context), but then you are adopting a world-view that is completely out-of-step with the legal system of this country.

 

Arizona Diamondbacks.

 

USSF's slogan, again, is "One Team. One Country." No mention of the people or the land. USSF uses this slogan to take the fans' (our) ticket and merchandise money. And they have enacted a policy commanding publicly displayed respect for a Congressionally-enacted state ballad. If USSF is not actually entwined with the federal government, at best the slogan, combined with other public pronouncements that USSF represents the country, is misleading puffery. At worst, it is criminal conduct under the plain language of 18 USC section 912.

 

Golden State Warriors also.

Heck, they even co-opted the official California State nickname! They're practically swimming with the Feds!

 

If you think that USSF is perpetuating some type of fraud, then establish the fraud elements. But that won't establish the USSF as a state actor with state power so as to justify constitutional limitations and protections on its subjects. You seem to have abandoned that argument.

Using a patriotic slogan to sell a product does not render one a government actor, and no reasonable person is misled by the slogan. I can sell you an American flag, but I'm not pretending to be the government.

Let's read the statute together:

"Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both."

USSF has never falsely assumed or pretended to act as an "officer" or an "employee" under the "authority" of the United States government. Sunil has not masqueraded as a park ranger, nor has he attempted to assert authority of the US government.

 

Francis Scott In-the-Key