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  • Writer's pictureAakash Thiagarajamurthy

Where to draw the line for an athletes’ Freedom of Choice and Expression - Part 2

In the case of Saibou, the German contract termination rules had to be looked at. In Germany an employer has a two week period after receiving knowledge of the potential circumstances of termination within which to declare an extraordinary termination and fire the employee before the contract terminates[1]. But the case of Saibou was extra-ordinary in that the player posed a risk of infection and threat to the safety of other players; hence this two week period could be exceeded[2].


To terminate a contract there has to be a just cause. If there is an extraordinary termination then there must be a compelling reason to terminate, and this means that it transcends the player’s interest to such a level that it is not feasible for the club to wait until the contract is terminated. In Saibou’s case both conditions were satisfied. The main justification for termination of his employment contract was that he confirmed his views by attending the protest against the laws imposed by the government. Consequently, it could be concluded that he was not willing to comply with the laws currently in place, and neither was he going to comply with them in the future.[3] This risky behaviour of his was sufficient cause to terminate him before the two week period. The point to remember is that the reason for termination or suspension must be of such a severe nature that waiting for the player’s contract to run out is just not feasible. In this case, the court laid down certain factors that must be considered. Firstly, one must determine whether the situation is leading to a just cause that can affect the relationship between the employee and employer. Secondly, it must be assessed whether the employee is likely to repeat this behavior or not change. Finally, it must be evaluated whether the behavior can lead to severe damage.


The German Constitution guarantees certain rights to people and one of them is the freedom of speech in Article 5.; employees must be allowed to express their opinion in an adequate manner. But the employer’s interest must also be kept in mind as per Section 241 of the German Civil Code[4] where the employee has a duty to be loyal to the employer, but when the topic of discussion is about rights, freedoms, and freedom of speech etc it can create some tension. Hence it must be assessed whether the expression was made publicly or privately. If the expression was made publicly, there is a possibility that the athlete implicated the employer in their comment. The employer has the right to protect their image, which may outweigh the employee's right to express themselves.[5] In the case of Saibou, it can be argued that the club must tolerate his views and opinions, and termination might have been excessive. However, looking at the circumstances surrounding Saibou’s behaviour, there was a very high risk to many individuals, with the team’s reputation also at risk. With the possibility of sanctions placed on the team by the league, it can be said that terminating his contract was justified action. This is in relation to the COVID virus and willingly exposing yourself and others to it. However over the past 6 months in the United States there has been a new development and avenue to consider when deciding athletes’ freedom of expression.


Does the freedom of choice apply to the COVID vaccine ?


Recently Kyrie Irving a superstar basketball player for the Brooklyn Nets in the NBA was all over the news for “deciding to keep his vaccine status private”.[6] The NBA is one of the few leagues that took drastic measures during the COVID pandemic where they suspended the whole league for a while during peak 2020 and resumed playing basketball later in 2020 inside a fully isolated bio bubble. Now as the world is at a slightly better place with respect to COVID and with the rolling out of the vaccines, countries are opening their borders and business is recovering. It should be noted that certain theories suggested that the COVID vaccine may not be very effective and could potentially harm individuals. However, numerous reports from reputable universities and laboratories have confirmed the safety of the vaccine and its ability to reduce the viral load in individuals who contract the virus.


The cities of New York and San Francisco passed laws that required those above the age of 12 will not be allowed to enter any closed premises including closed arenas, gyms, training facilities etc unless they are able to furnish proof that they have been double vaccinated - this rule also applied to the NBA teams as well.[7] This meant that Kyrie would not be allowed to enter his team’s stadium, training facility or gym. Kyrie in a statement said that he will not be taking the vaccine and that he is taking a decision which is best for him. Due to this decision, the Brooklyn Nets could face huge losses and Kyrie Irving would lose millions as a result of his freedom of choice to be unvaccinated.[8] This is an unequivocal case that calls for the imposition of punishment, which has already been done by deducting a portion of his pay for every missed game [9]. The matter of public safety and health outweighs an individual's freedom of choice, and therefore, the franchise, league, and even the government are justified in enforcing such measures as he poses a significant risk to those around him. Thus, all parties involved are within their rights to fine him, prohibit him from playing, or even deny him entry into the arena.


In another situation, one of the biggest names in the NFL, Aaron Rodgers, quarterback of the Green-Bay Packers tested positive for COVID. It was later found that he was unvaccinated but was playing all the matches and was not following the appropriate protocol that was in place for NFL athletes who decided to stay unvaccinated. The NFL has given a waiver for athletes to remain unvaccinated whereby they would follow a stricter protocol. Additional measures would include compulsorily usage of a mask and adherancy to stricter social distancing rules. However, Aaron Rodgers tested positive for the virus and stated online that he is a critical person and that he still is not convinced with the vaccine and its effects. He also mentioned that staying unvaccinated was his personal choice which he actively took and it fell under his freedom of choice.[10] In this case, even though the NFL does have provisions for athletes to stay unvaccinated and freely express their thoughts, Aaron Rodgers still chose to not disclose the statues of his vaccination. This is a clear case wherein his freedom of expression and choice can be fined or sanctioned as he has actively played a part in exposing other athletes and various stakeholders to the virus, collectively putting many at risk. The NFL handed the team a $300,000 fine and a $15,000 for Aaron Rodgers. Hence they were justified in doing so.[11]


To Conclude


In recent times, the world has been significantly impacted by the COVID pandemic and the sudden rise of social justice movements, exemplified by events such as the killing of George Floyd. As a result, many individuals have experienced confusion and uncertainty as they attempt to navigate these complex and emotionally charged issues. Unfortunately, social media has further complicated matters, as it has become a primary source of information and has influenced the opinions of many individuals. With this, athletes are automatically induced to express their opinions about certain political issues as the social is the political. Athletes need to be given the freedom to express what they believe in and the freedom to make choices that they believe, as ultimately they are humans themselves and must be given that respect. It must be acknowledged, however, that as athletes, they hold a certain standing and popularity coupled with the ability to influence people. From the cases of Kyrie Irving, Aaron Rodgers and Joshiko Saibou we can argue that if the athlete’s personal choices or expressions are detrimental to the health, safety and well-being of people around them, then a line must be drawn with regard to athletes, and their freedom of choice and expression.


References

[1]German Football Association Rule book, Rule 4 No. https://www.dfb.de/fileadmin/_dfbdam/225053-Fussball-Regeln_2020_21_RZ.indd.pdf (last visited Sept 22, 2020).


[2] Section 623 German Civil Code (BGB).


[3] Agence France Presse, 'Permanent Risk Of Infection' - German Basketballer Sacked After Demo Visit Barron's (2020), https://www.barrons.com/news/permanent-risk-of-infection-german-basketballer-sacked-after-demo-visit-01596555606 (last visited Nov 26, 2021).


[4] ‘Professional basketball player Saibou relieved about agreement’, ZEIT ONLINE, 22 Nov 2020, https://www.zeit.de/news/2020-11/22/basketball-profi-saibou-erleichtert-ueber-einigung. (last visited 23 Nov 2020).


[5] Section 241 German Civil Code (BGB).


[6] Ansgar Fassbender & Dwayne Bach, Fired for breaching coronavirus rules: key points from the Joshiko Saibou case LawInSport (2020), https://www.lawinsport.com/topics/item/fired-for-breaching-coronavirus-rules-key-points-for-sports-clubs-from-the-joshiko-saibou-case (last visited Nov 26, 2021).


[7] Nets' Kyrie Irving says refusal to get vaccinated is about 'what's best for me', The Guardian (2021), https://www.theguardian.com/sport/2021/oct/14/kyrie-irving-vaccine-refusal-instagram-live (last visited Nov 26, 2021).


[8] Des Bieler, Unvaccinated Knicks, Nets, Warriors players will have to sit out home games, NBA memo says The Washington Post (2021), https://www.washingtonpost.com/sports/2021/09/02/unvaccinated-nba-knicks-nets-warriors-players/ (last visited Nov 26, 2021).


[9] Tim Bontemps & Bobby Marks, Sources: Kyrie faces pay cut for missing games ESPN (2021), https://www.espn.in/nba/story/_/id/32337594/nets-kyrie-irving-lose-millions-according-nba-nbpa-agreement-salary-reduction-unvaccinated-players-miss-games-due-local-covid-19-vaccine-mandates (last visited Nov 26, 2021).


[10] Rob Demovsky, Source: Pack's Rodgers tests positive for COVIDESPN (2021), https://www.espn.in/nfl/story/_/id/32542413/green-bay-packers-qb-aaron-rodgers-tests-positive-covid-19-source-says (last visited Nov 26, 2021).


[11] Grant Gordon, Packers fined $300K, Aaron Rodgers, Allen Lazard fined $14K for violation of COVID protocols NFL.com (2021), https://www.nfl.com/news/packers-fined-300k-aaron-rodgers-allen-lazard-fined-14k-for-violation-of-covid-p (last visited Nov 26, 2021).

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