‘This is a team sport': Giants who protested Pride likely not protected by religion, labor lawyers say

Three of the four San Francisco Giants pitchers who protested the team's Pride Night rainbow hats last week, citing their Christian beliefs, likely are not protected by religious exemption laws, a former National Labor Relations Board chairman told the Chronicle on Friday.

Scribbling a Bible verse on their team hats adorned with a rainbow "SF" designed to celebrate the LGBTQ community violated Major League Baseball's rules on altering uniforms, said Bill Gould, a Stanford law professor emeritus who played a crucial role in ending the MLB strike in the 1990s and has mediated more than 300 labor disputes. Baseball and professional sports teams carry different standards than your typical workplace, he said.

"I would say (the Giants) are not running afoul of the religious exemption," Gould said. "Sports and baseball are in a different situation. Here a uniform is something that the name implies - uniform … This is a team sport and the public and fans are interested in it because it involves cohesion."

The U.S. Department of Justice on Thursday opened a civil rights investigation into MLB, asserting the league may have discriminated against the Giants pitchers on religious grounds after Landen Roupp, JT Brubaker and Ryan Walker all wrote a Bible verse on their team-issued caps adjacent to the rainbow team insignia. A fourth pitcher, Sam Hentges, simply wore the regular Giants hat with the standard Giants logo.

The Pride hat protest quickly became a fraught issue, with local and national leaders weighing in.

MLB said on Monday that writing on hats "violates our rules, and consistent with normal practice, we have warned the players about future violations."

Three days later, the DOJ launched its investigation.

"The three players expressed their opposition to MLB's pro-Pride orthodoxy," Assistant Attorney General Harmeet Dhillon wrote in a Thursday letter to MLB Commissioner Rob Manfred. "The Civil Rights Act prohibits MLB and its franchises from unreasonably burdening the rights of players with religious objections to serving as the League's vehicle for pro-Pride messages."

Dhillon, formerly a San Francisco attorney and California Republican Party official, is a longtime conservative activist whose appointment by President Donald Trump drew opposition from the LGBTQ community. She has claimed that schools are "brainwashing their kids to identify as bisexual and transgender."

She announced the justice department had referred MLB to the Equal Employment Opportunity Commission for investigation, after the league warned three of the players to stop writing religious citations on their clothing or face fines. The protest and MLB response made headlines, with Vice President JD Vance writing, "Trump won, we don't have to do this anymore." Other Republican lawmakers called the league's rebuke a trend of punishing Christians for their religious beliefs.

In her letter, Dhillon called it a "double standard" that MLB allowed players to wear "Black Lives Matter" patches on their uniforms in 2020. She also cited a 2015 ruling in favor of a Muslim woman who had been denied a job at Abercrombie & Fitch because her hijab didn't align with the store's dress code.

"Federal law is clear: employers must modify their uniform requirements to reasonably accommodate their employees' exercise of religion," she wrote.

Not in baseball, Gould argued. Or other professional sports.

"They are out to lunch on the idea that wearing a hijab in a retail store is the same as wearing a cap on a baseball field," Gould said. "There's a basic interest in keeping the uniform - uniform."

The Black Lives Matter argument also does not apply, Gould said, because baseball allowed that only in the immediate aftermath of George Floyd's killing.

"There is an inconsistency there, but it's not quite the same as how the players are being treated here," Gould said, citing as well the temporary 9/11 tributes after the terrorist attacks.

Gould noted that MLB outlaws any writing on its uniform, not just religious refrains. So a player would be equally reprimanded for honoring a family member's birthday by writing a name on his hat.

Gould differentiated Hentges from the other pitchers, saying protesting by simply wearing his normal Giants hat without the rainbow logo would not violate the league's uniform requirements. Hentges was not warned by MLB.

UC Berkeley law professor Catherine Fisk, who teaches employment law, said the legal landscape around worker uniforms is important, protecting both the worker and company.

"There are a variety of laws limiting the ability of companies to require that employees be walking billboards for the corporate leaders' political views," Fisk wrote in an email. "But, conversely, the law also limits the ability of employees to express their own views on the job, including through wearing large or ostentatious messages or buttons that might interfere with the purposes of requiring employees to wear uniforms."

She added that MLB players are unionized.

"There are provisions in the MLB collective bargaining agreement that address the power of teams to require players to wear insignia that the team or the league require," Fisk wrote. "If the team objects to the players' refusal to wear the pride cap or addition of a biblical quotation, they can work it out with the players through the contractual process. That's what the contract is for."

The closest precedent for MLB might be its handling of another relief pitcher.

In 2000, MLB Commissioner Bud Selig suspended Atlanta Braves closer John Rocker for racist and homophobic comments he made in a Sports Illustrated article the year before. He also levied a fine and required Rocker to attend diversity training, punishment that was upheld in part in arbitration.

Gould, who wrote about the saga in his 2011 book "Bargaining with Baseball," said the ruling could support the league's ability to discipline a player over some speech.

"By the Rocker test you might be able to effectively sanction these people," Gould said. "If you're gonna cost baseball with reduced attendance and revenue due to hateful comments, the Rocker ruling could be upheld."

What courts will not weigh in on is whether or not the biblical passage the players all cited means theologically what the players articulate them to mean, Gould said. Courts give "a lot of deference" toward religious beliefs.

"The courts would be very cautious scrutinizing the particularity of the expression of opposition for religious matters," he said.

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