By: Cody “Tick” McElroy
Colin Kaepernick, a quarterback for the San Francisco 49ers NFL football team, has chosen to kneel rather than stand during the national anthem every game this season. Several other players in the NFL have joined in this protest, opting to take a knee as well. These actions have sparked heated debates on patriotism and have also drawn attention to the reason Kaepernick and others are protesting: police brutality and racial oppression in the United States. Disdain over NFL players’ protests of a treasured American custom has many citizens debating the limits of our right to free speech.
Under the First Amendment, the U.S. government, or any government entity, may not punish a private citizen for exercising an act of constitutionally protected free speech. Free expression of unpopular speech is not only tolerated in American culture, it is considered a core societal value to be protected and defended. However, this fierce protection only extends to government actions, which begs the question: can a private employer, such as the NFL, restrict a player’s right to protest?
The NFL Players’ Association (“NFLPA”), a labor organization representing professional football players in the NFL, works with the NFL every few years to create a collective bargaining agreement (“CBA”). The CBA is a labor agreement that reflects the negotiations between leaders of the NFLPA and NFL team owners. It covers matters such as off-season workouts, salaries, medical care and treatment, and even extends to endorsements, attire, and public statements.
The CBA protects players from team interference in several ways. For example, team officials are prohibited from interfering with the footwear or gloves athletes choose to wear, except in a context of “safety or competitive considerations.” Although these guidelines seem to protect freedom of symbolic speech through apparel choice, the NFL Playing Rules tell a different story. One NFL rule states that players may not, “wear, display, or otherwise convey messages…which relate to political activities or causes.” While the CBA parameters attempt to afford protection for political displays, heavy regulations under the NFL Playing Rules seem to drown out their efficacy.
Several players find themselves in violation of speech related policies every season. Many fans remember the example embodied by former Seattle Seahawks running back, Marshawn Lynch. The NFL’s Media Access Policy requires that “star players” must speak with the media during the practice week, in addition to general post-game media access. Lynch was fined $75,000 for his silence following the Seattle Seahawk’s NFC championship win against the Green Bay Packers. Perhaps the most publicized implementation of the Media Access Policy came in form of Lynch’s remarks during Super Bowl XLIX media day, in which he responded to every press question for five straight minutes with the remark, “I’m just here so I won’t get fined.”
While the NFL regulates player speech through a variety of restrictions, NFL and CBA guidelines are noticeably silent in regard to the action in controversy, standing for the national anthem. However, other sports organizations have penalized this activity in the past. In 1996, Mahmoud Abdul-Rauf, a former LSU basketball star, was suspended for one game by the NBA and hit with a $32,000 fine when he refused to stand during the national anthem. Abdul-Rauf cited his Muslim faith and protest of racial oppression as reasons for his behavior. The difference between the NBA’s decision to take action against a player and the NFL’s permission of this form of protest stems from regulation. In Comment H-2 of the NBA Rules, there exists an explicit requirement for players to stand during the national anthem.
Although the protests have been contentiously debated, the NFL or any individual team owner has yet to mandate any punishment against a player for their refusal to stand. The question remains: what happens if their employers begin to implement penalties for this behavior, lacking a specific regulation?
Private employers generally have discretion to fire employees for any number of reasons, controversial displays included. However, Professor William Corbett of the LSU Law Center says there is a small window for an actionable claim in this situation. “When employers get angry with employees and fire them, they are in risk of violating section seven of the National Labor Relations Act. The employee’s action could be construed as a concerted activity for mutual aid or protection,” Corbett stated. The NLRA’s purpose is to encourage bargaining, protect employees and employers, and curtail certain private sector practices. Section seven[1] states that employees may, among other things, “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
Corbett states that these protests might be interpreted as discussion on general safety in the working place, covered by “mutual aid or protection.” Retaliatory punishment of this action could possibly violate section seven of the NLRA, although he admits the interpretation would be a stretch. “What the players are really doing is speaking out on political issues.”
As a practical matter, team owners and NFL executives often avoid this dilemma by simply saying silent on the issue. The 49ers have made it clear that Kaepernick is free to behave how he chooses during the national anthem. Termination of players who have recently exhibited forms of protest could leave the organization vulnerable to liability, especially if the released player was previously sanctioned or publically reprimanded for such behavior.
Whether the NFL will begin to regulate game day activities associated with the national anthem and other political expressions remains to be seen. The decision to exercise more control over players’ speech hinges less on the fear of legal liability and more on concern for how these regulations would play out in the ever powerful, court of public opinion.
[1] 29 U.S.C. § 157