College Sports Business News - The Publication for College Sports Administrators

I recently went to a college basketball game and like many in attendance I found myself bombarded by out of control fans chanting profane and obscene comments directed toward players, coaches and even the mascot. While conceding that there is a generational difference that arises in assessing the appropriateness of the chant “you suck,” there can be no disagreement that other chants and comments definitely qualify for inclusion in George Carlin’s list of the seven dirty words.

The question is do we have to accept it? 

Are the rights of the broad majority of attendees at the game so easily trampled? These attendees are a captive audience and have no ability short of leaving the arena to escape hearing and/or seeing these vulgar chants.

Incidents of inappropriate or offensive language can be found in almost any college basketball arena in the country. As a result, athletic administrators have found themselves at a loss to effectively address this issue. For families with young children the vulgar language and chants at games in effect create a hostile environment, which results in families opting to not come back to the games. This decision and the ensuing discussions by those individuals about their experience reflect poorly on the team, the athletic department, the student body and the college or university as a whole.

A couple of years ago incidents at New Mexico State University led their athletic director to write an open letter to the Aggie community. While sharing the general public’s embarrassment and repulsion over the offensive chants of some loud fans, the athletic director cited (undoubtedly upon the advice of state counsel) that the free speech rights of these fans left the state university with little ability to punish vulgar chants.

Other institutions have adopted a more aggressive legal and educational approach including the University of Maryland and Boston University. One is a public institution and the other is a private one and that is an important legal distinction when considering first amendment rights.

Both institutions have experienced similar vulgar chants like New Mexico State, but have decided to potentially address the issue with efforts to both encourage better language and punish vulgarities. This two-pronged approach seems to be a wise strategy.

The University of Maryland asked for advice from the state attorney general on this matter and was advised that a carefully drafted policy against vulgar language would be permissible even by a state university. They adopted a voluntary compliance strategy, but may have the legal authority to go further if it is not successful.

As a private university Boston University is not bound by strict first amendment concerns. As a result, they have chosen to prohibit cursing at athletic games as a way to control the vulgarities frequently heard during chants. The penalty for such behavior is expulsion from the arena.

From a legal perspective the issue is whether after inviting fans to attend the game for the purpose of cheering on their favorite team the university can prohibit the types of cheering which are deemed vulgar and/or offensive?  Whose standard will be used to gauge the offensive nature of the chanting? Should the standard be measured against the most tolerant or least tolerant fan? Or, should a reasonable person test be devised?

First amendment devotees will argue that prohibiting certain kinds of chants at games is of no small constitutional consequence. They argue that a prohibition on speech cannot be done in a uniform and non-arbitrary manner. Likening the arena to a public forum for the exchange of political ideas, first amendment defenders argue that chanting should not be compromised by speech content restrictions. Yet, it seems implausible to conclude that a fan at a game in an arena screaming profanities is engaging in politically protected speech.

Surely there must be a way to respect both first amendment free speech rights and the rights of fans to enjoy a game without a constant attack on their reasonable sensibilities. The right to free speech is not absolute and must be balanced against the right of others to watch the game in a safe and non-confrontational setting. The “two-pronged” approach may be the most advantageous way to encourage proper decorum and to be prepared to legally punish inappropriate conduct. Here are some common sense suggestions:

Encourage Proper Decorum

1. Develop a code of conduct for games with input from student and fan groups with sanctions for non-compliance clearly spelled out.  The involvement of the “stakeholders” in this discussion is critical and undermines the argument that an unfair and overly restrictive rule was arbitrarily imposed by the administration.
2. Disseminate the code of conduct widely and display it throughout the arena.
3. Develop educational opportunities for prominent coaches, administrators and team captains to meet with groups (whether at public meetings, dormitories, fraternities/sororities or other group settings) to discuss the importance of civil behavior and appropriate language.
4. Find ways to both highlight and reward positive behavior whether on an individual, dormitory, fraternity/sorority, section or other group basis.
5. Provide announcements at all games about the importance of civility and respect as well as how and where to make a complaint or voice a concern.  Most importantly, find interesting ways to deliver these messages so that they are actually heard and understood.
6. Utilize media opportunities to profile the push for “clean cheering.”
7. Educate event staff on customer service, responding to complaints, and how to evaluate and take action on problematic behavior.

Lay the Foundation to Take Action

1. Create a potentially legally enforceable policy by stipulating on the ticket that it is a license to attend the event subject to the requirement to refrain from vulgar and offensive chanting.  If this condition of the license is not met and after the person has been warned once, the license will be revoked and the person will be removed from the arena.
2. Inform all season or package ticket holders of this requirement and that its violation may result in the revocation of the tickets and/or the denial of future ticket requests.
3. Include this requirement on appropriate behavior at games in the student code of conduct.
4. Compile the evidence of the inappropriate behavior in the form of fan based complaints, other fan witnesses, staff observations, supervisory staff observations and verification, and video and/or audio recordings if available.
5. Remember that the responsibility for a university to maintain crowd control for the purpose of public safety is legally clear. Since some of the vulgar chants could be construed as fighting words the university may be legally permitted to restrict or remove the offending fans in certain instances even in the public setting.  Event staff must know and understand the parameters in order to be effective.
6. Coordinate your final draft policy and the procedure for its implementation with your university counsel.

By Dave O'Brien, CSBN Editor

Dave O'Brien J.D. has been a college sports executive and educator for over 25 years.  He served as a Division I athletic director at Long Beach State University, Temple University and Northeastern University for 16 years (1991-2007). 

O'Brien is currently the Director of the Sports Management Program at Drexel University where he also teaches at the undergraduate, graduate and law school levels.  In addition to his academic position, O'Brien is the managing partner of the O'Brien Sports Group which provides a wide range of consulting services to the college sports industry, including NCAA rules compliance, risk management audits, business support services, executive recruitment, training workshops and more. He is also an editor of College Sports Business News.

O'Brien is active nationally in sports law matters as co-author of a monthly column on college sports law issues published in College Athletics and the Law and as a consultant on sports topics including pay equity, retaliation, harassment, Title IX, and coaching contracts.  

Prior to becoming an athletic administrator, O'Brien served in a variety of roles in higher education, which included assistant to the president for legal and legislative affairs at Montclair State University and the assistant vice president for administration and finance at Long Beach State.  He also served on the legislative staff of the New Jersey Senate and practiced law in New Jersey. 

O'Brien is a graduate of Moravian College and Seton Hall Law School, and has also attained certification from the Sports Management Institute as part of its inaugural class. He can be reached at dobrien@collegesportsbusinessnews.com