In una società sempre più plurale, grandi sfide sorgono dall’interazione tra la libertà religiosa degli individui e le regole delle organizzazioni per le quali lavorano. In tale scenario, l’NBA, una delle leghe sportive professionistiche più internazionali e multiculturali del mondo, costituisce un ambito di analisi di particolare interesse. Infatti, le sue tappe cruciali – i Playoff e le finali – si svolgono tradizionalmente da aprile a giugno, ovvero in un periodo che, nei prossimi anni, coinciderà (in parte) con il mese del Ramadan, durante il quale tutti i musulmani, in virtù di un obbligo religioso, sono tenuti a digiunare dall’alba al tramonto. La presenza di giocatori musulmani nell’NBA pone diverse questioni giuridicamente rilevanti. Gli A. esaminano inizialmente l’ipotetico scenario di un giocatore professionista musulmano che si astenga dall’eseguire la prestazione lavorativa o la cui prestazione lavorativa risulti insoddisfacente come conseguenza diretta della sua condotta religiosamente orientata, chiedendosi come tali condotte verrebbero qualificate in base al diritto del lavoro e antidiscriminatorio statunitense. Infine, il contributo si concentra sul necessario ruolo del datore di lavoro nel facilitare l’esercizio della libertà religiosa da parte dell’atleta, sulla scorta degli sviluppi più recenti della normativa antidiscriminatoria statunitense, che non si limita a vietare un trattamento diverso e deteriore da parte del datore di lavoro basato sulla condotta religiosa del dipendente (disparate treatment), ma che anzi impone una posizione (inter)attiva del datore nel garantire l’esercizio della libertà religiosa da parte del dipendente attraverso l’adozione di accomodamenti ragionevoli (reasonable accommodations).

SOMMARIO:

1. Introduction - 2. Sports and Religion: from Neutrality to Pluralism - 3. Sports in Islam: a Focus on Ramadan - 4. Religious Freedom and Disparate Treatment in the NBA - 5. From the Prohibition of Religious Discrimination to the (Inter)active Accommodations - 6. Conclusions - NOTE

1. Introduction

Considering how sports events take place throughout the whole calendar year, it is not unlikely that they could – partially – overlap with the Ramadan month. As broadly known, during Ramadan period, the ninth month of the Islamic calendar, all Muslims, according to a religious obligation, have to fast from dawn to sunset. As a consequence, it is likely that the working performance of Ramadan observant employees could be affected by the fasting. In this sense, the well-known US professional basketball league (NBA) provides a very interesting locus of analysis, since its crucial stages – the Playoffs and the Finals – take place from April to June, a period which will partly coincide in the next few years with the Ramadan month. Since employment antidiscrimination policies are applicable to the professional athletes (despite some relevant derogations due to the specificities of the sector), after a brief account of the development of the relationship between Sports and Religion, we wonder which safeguards are currently enjoyed by the Muslim NBA players according to the US legal framework in matter. At first, we deal with the hypothetical scenario of a player that abstains from carrying out the working performance (i.e. playing), due to the fact that the latter could jeopardize his health and well-being. Secondly, we envision the case of a player who decides to play while abiding by the Ramadan prescriptions and whose working performance is poor as a direct consequence of the religious-driven conduct. The question is whether both the mentioned conducts could be classified as a breach of contract or whether the safeguard of religious freedom refrains the employer from taking an adverse (disciplinary) action. Ultimately, the essay focuses on the employer’s (due) role in facilitating the athlete’s exercise of religious freedom, pursuant to the eventual developments of employment antidiscrimination law, which requires an (inter)active role of the employer in guaranteeing the employee’s exercise of religious freedom and not only the employer’s abstention from a disparate treatment based on the employee’s religious conduct.

2. Sports and Religion: from Neutrality to Pluralism

It would have been unreasonable to expect that sports might be immune to the overall comeback of religion in the public sphere [1] occurring in the recent decades. On the one hand, this greater presence of religion in the sports field(s) could be just an outcome of the well-known phenomenon of interaction between globalization and individual cultural and religious identity-related demands, which characterizes postmodernity [2]. On the other hand, the peculiarities of sports should not be underestimated: if they undoubtedly constitute places of personal growth and education, athletes cannot avoid manifesting their most intimate choices, even of a religious nature, in the exercise of sporting discipline [3]. Still, identity issues have been traditionally faced by sports institutions with poor attention: sports have been considered as the neutral places par excellence, such inspired by the values of fair play, integrity and decency [4] that every potentially conflicting element, as politics or religion, had to be excluded. From a legal point of view, the result was a compelled (and compelling) neutrality [5], basically aimed at ensuring that any athlete had the chance to practice sports without suffering any religious discrimination. Therefore, the “sterilization” [6] of the sports fields from potentially controversial factors determined an understanding of religious freedom in sports just as a negative liberty: this means that it was treated as a fundamental right to be protected from external interferences, but, at the same time, not to be actively promoted. In other terms, the overall understanding was that hiding religion and relegating it to the inner sphere was due to avoid the risks of dangerous conflicts which could undermine the golden principle (or mantra?) of sports’ neutrality. Along the same lines, for example, the statutes of FIFA (“Fédération Internationale de Football Association”) provide that «discrimination of any kind against a country, private person or group of people on account of (…) religion is strictly prohibited and punishable by suspension or expulsion» [7]. Moreover, the mentioned statutes point out that «FIFA remains neutral in matters of politics and religion» [8]. As to basketball, the Internal Regulations of FIBA (“Fédération Internationale de BAsketball”) [continua ..]

3. Sports in Islam: a Focus on Ramadan

In order to understand the meaning of sports and physical activity in Islam, it is first necessary to pinpoint the particular role played by body in Muslim creed. The human being, as the Qur’an says [22], was created by Allah both body and soul. Therefore, not only the latter, but also the former is perceived as a direct emanation of the divine creation [23]. If there is no dichotomy, as there is not, between the two, both have to be protected with the same devotion, being the physical care essential to preserve the perfection of what was made by Allah, who «created man in the best design» [24]. Along the same lines, also sports and physical activities could be viewed as a form of worship [25]: more precisely, both Qur’anic verses and written accounts of the Prophet Muhammad’s teachings (so-called “Hadiths”) collected in Sunnah are frequently used to portray Islam’s concept of sport [26]. For what concerns Qur’an, the verses generally cited [27] in order to support compatibility between sport and Islam are 38:41-42: «And mention Our servant Job, when he called out to his Lord, “Satan has afflicted me with hardship and pain”. “Stamp with your foot – here is cool water to wash with, and to drink”» [28]. The reference to stamping the feet as a salvific act is often utilized as the main proof of the importance of physical activity in the path of faith. Coming to Hadiths, a few tell about the Prophet practicing himself sports or encouraging others to do it. In particular, he recommended swimming, shooting, horse riding, running, fencing, wrestling [29]. In any case, though, physical activity is subordinate to the spirit of the Revelation: performing sports should not disrupt from religious duties, be dangerous for who practices it and for the others, involve gambling, induce a lack of respect for the adversary and must be practiced in accordance with the rules of modesty in behavior and clothing [30]. Indeed, another Qur’anic verse (Surah 57:20) seems to limit the role of sport in everyday life: «Know that the worldly life is only play, and distraction (…) the life of this world is nothing but enjoyment of vanity» [31]. Therefore, if a Muslim cannot allow sports to distract himself from the duties imposed by his faith, this applies a fortiori to the five pillars of Islam: [continua ..]

4. Religious Freedom and Disparate Treatment in the NBA

In the wake of the shift of sports from a mere hobby to a professional activity, the application of both labor law and anti-discrimination policies to professional athletes is uncontested. Indeed, the circumstance that sportsmen might be part of the privileged category of those who (arguably [41]) live out their dreams does not provide any reasonable ground to deprive them from their employment rights [42].  As broadly known, US antidiscrimination law prohibits disparate treatments based – inter alia – on religion [43]. Moreover, the law specifies that any aspect of “religious observance and practice” falls under the protection against religious discrimination [44]. Accordingly, any adverse business action based on a religion-related conduct is prohibited [45]: as a consequence, the NBA players who fast during Ramadan should not be differently treated (i.e. disciplined or retaliated against) by their teams [46]. Indeed, pursuant to US employment law, the athlete’s religious neutrality cannot be classified as a “bona fide occupational qualification” [47]. For the latter purposes, the employer should be able to demonstrate that the player’s religious belief and conduct refrain him from fulfilling the essence of his employment duties. However, such a demonstration would be almost impossible (also) in the case of the fasting NBA players for several reasons. At first, it is interesting to remind that, in the past, Hakeem Olajuwon played some legendary games while fasting for Ramadan [48] and, more recently, Enes Kanter was very solid on the court during the 2019 NBA Playoffs [49], despite a shoulder injury that he could not effectively heal due to Ramadan’s prescriptions [50]. These relevant cases factually show that players’ activity is not necessarily impaired – and certainly not undermined in its essence – by the religion-related conduct, although there are studies providing evidence that observing Ramadan could affect muscular strength and endurance, high-intensity exercise performance, anaerobic power and maximal aerobic power [51]. Secondly, tracing a direct link between the athlete’s poor performance – which, especially in collective sports, is itself hard to measure, even in times of “sports analytics” – and his fasting would be extremely hard, also [continua ..]

5. From the Prohibition of Religious Discrimination to the (Inter)active Accommodations

In 1972, the US Civil Rights Act of 1964 was amended to commend the employers not only to refrain from disparate treatment on religious grounds, but also to take reasonable steps to accommodate their employees’ religious beliefs [53]. As pointed out in literature, the decision to protect religion observance and practices even at some cost to the efficiency of private employer policies reflected the societal commitment to an active promotion of religious pluralism [54]. It is also noteworthy that the amendment of 1972 was proposed by Senator Randolph, a member of the Seventh Day Baptists whose Saturday Sabbath often conflicted with work requirement [55]. Still, the law allowed the employer to refuse to take the due “reasonable accommodations” if the latter turned into an “undue hardship” for the employer. The open and vague nature of the concepts of “reasonable accommodations” and “undue hardship” called the US Courts to a delicate activity of interpretation and adaption to the specificities of the single cases [56]. According to the influential “Hardison” precedent of the Supreme Court, any burden on the employer that entailed a “more than a de minimis cost” was an “undue hardship” [57]. Needless to say, the “de minimis” standard of the “undue hardship” is evidently very low in terms of employment protection. However, a little hardship is still necessary to bring about the due accommodation [58] and, in the NBA case, the portrait of an international and multicultural League [59] possibly justifies – according to the adage cuius commoda eius incommoda – an extra effort on reasonable accommodations, which would also potentially have a beneficial return on the NBA brand [60]. As to the employee-employer relationship, one might argue that providing qualified medical staff and special nutrition to the fasting player is certainly due by the employer (i.e. not an excessive hardship) [61], also considering how the well-being of players is a key to the same team’s success. Conversely, on the organizational side, setting the team’s schedule to accommodate the fasting player’s needs seems to transcend the “de minimis” standard on several grounds [62]. At first, the schedule of the activities of the NBA teams largely depends [continua ..]

6. Conclusions

In the increasing diversity of contemporary workplaces and societies in general, personal identity and religious freedom have to be not only safeguarded, but also actively promoted. If we consider the case of the athletes fasting during Ramadan (the focus of this paper), it seems clear that a simple “laissez faire” approach, along with the ban on disparate treatment on religion grounds, does not suffice anymore in a germane pluralistic perspective. Accordingly, Sports Federations and Leagues cannot entrench themselves behind the old “mantra” of sports neutrality, as they basically did during both 2012 Summers Olympics in London and 2018 FIFA World Cup [72], but they have to affirmatively take into account the religious needs and the related demands of the athletes. As to the NBA (our locus of analysis), there has not been this far either any special request or – a fortiori – any controversy in matter, but something might potentially come up in the next years, when the NBA crucial stages – the Playoffs and the Finals – will partly coincide with the Ramadan period. As already observed, US antidiscrimination law commends the employers to take “reasonable” steps to accommodate their employees’ religious beliefs, without either impairing the overall employer organization or negatively affecting the religious employees’ co-workers. In our view, providing qualified medical staff and special nutrition to the fasting player might be a reasonable accommodation by his NBA team, whilst the request to reset the team’s schedule to accommodate the fasting player’s needs would possibly qualify as an “undue hardship”. Still, it seems that in this matter the method counts more the merits: it is the (inter)active search of a reasonable accommodation itself that helps promoting the open dialogue and the mutual understanding which is the essential key to prevent religious conflicts (also) in an international and multicultural League like the NBA, where diversity is highly enriching and certainly not burdensome.

NOTE