The president, last weekend, took to Twitter to call out the NFL on their national anthem policy. This has become a prevailing characteristic of not just this presidential administration, but discourse in general. A question and solution were both presented in a tweet and then shared to millions. It took 280 characters to spark a national debate and to push what for many is an easy solution. But as we have learned over the last few years, maybe it’s not so easy.
The NFL National Anthem Debate is alive and well again – can’t believe it! Isn’t it in contract that players must stand at attention, hand on heart? The $40,000,000 Commissioner must now make a stand. First time kneeling, out for game. Second time kneeling, out for season/no pay!
— Donald J. Trump (@realDonaldTrump) July 20, 2018
There has been a long-standing beef that has gone on with the President, and many of his supporters, and the NFL players who have followed Colin Kaepernick’s lead and knelt in protest during the pre-game ritual of the playing of the National Anthem. Some of this recent uproar and tweets have been in response to the Miami Dolphins ownership announcing disciplinary actions against any player that kneels during the anthem, and another part is a response to the NFL suspending any of their recently announced National Anthem Conduct Policies to discuss them with the NFLPA. Arguably there is another segment of the population that believes this is to distract from other issues surrounding the current President. Regardless of where you stand on the matter, the question as always seems to be “Can they do that?”
I was recently asked a few questions related to the NFL’s new proposed policy and whether or not the NFL can do as the president is asking, and fire or suspend players for a season for refusing to stand for the anthem. And unfortunately, a question that is implicitly raised in a 280 character tweet often takes more than that to unravel.
Can the NFL or NFL teams fire players for not standing for the national anthem?
Prior to going to law school, I was asked to read a book that was a primer to all things related to law. The book was called “Getting to Maybe.” Not to give a full review of the book, but in a nutshell, the book teaches to embrace the uncertainty of the law. To answer the question of whether the NFL can fire players for protesting, I have to give the answer that almost every legal question merits: It depends.
Is it constitutional to fire someone for not standing for the National Anthem?
I had one person say to me, “This can’t be constitutional! Players are allowed free speech in the constitution.” This is a tad complicated, but suffice it to say I feel like, regardless of where you stand on the current political climate, we are all getting a crash course in Constitutional Law and we will all leave these 4 years with our Jurist Doctorate. I honestly wake up every morning to check my twitter feed to see which constitutional question we will be grappling with today. But to further that series of lessons in Constitutional Law, it becomes imperative to understand what the United States Constitution really is. The Constitution was drafted under the backdrop of Colonial America where they were breaking free from an oppressive all-powerful non-representative monarchy. Just like in sports, when a demanding coach is fired, ownership usually moves towards a more player-friendly-coach, the founding fathers moved to a more representative, less centrally powerful governing document. It was a pendulum swing. So, understanding that backdrop the Constitution is written as a negative rights document. Meaning, the Constitution only limits what the government can do and does not limit what private people do. This is known as the “state action doctrine.”
There is a robust set of case law (Marsh v. Alabama and Shelley v. Kraemer et. al) that has further defined which different entities represent government agencies or “state actors” that are constrained by the Constitution. But admittedly, the definition gets a little squishy around the edges. For example, we know a government agency (FBI, DOJ, even schools) is a state actor, but what about private companies that accept government funds? Are they working on behalf of the government? What about private companies that run towns (Hello, Disneyland), are they state actors? How about private prisons? See how it can be a little difficult?
That being said, there can be arguments made that NFL teams that receive government subsidies might be working as state actors (The Green Bay Packers are owned by the people of Green Bay which sounds very government-y), but barring anything like that, the NFL and NFL Teams are private businesses and function apart from the government and would likewise be viewed as such. The NFL is not the government, so the Constitution does not limit the NFL’s actions. So no, the US Constitution would not prevent a player from being dismissed for even expressing their first amendment right of protest. Interestingly enough, Twitter and Facebook are also private entities and can likewise censor people and kick people off while not violating an individual’s constitutional rights. Likewise, the President cannot block people on Twitter since he is, quite literally, the government and can’t censor people. But those are completely separate topics and I digress.
Okay, so it would be Constitutional, but is it legal?
Just because something doesn’t violate the Constitution, doesn’t make it legal. Understanding that the NFL is not the government and therefore not restrained by the Constitution, are there any other restraints on these actions against the players? Likely, yes.
Quite frequently I have seen an argument made that NFL players cannot protest on company time and that if John Q. Public were to protest at their own work they would be fired. The fact of the matter is, that is partially true. Sure, you would get fired at your job at the Dunder Mifflin Paper Corporation if you took a knee during Michael Scott’s odd playing of the National Anthem at the beginning of the day. He totally seems like someone that would do that and also force people to stand. But your job in Scranton is what is called an “at will” job. That is to say, Michael Scott can terminate your employment at any time for any reason.
Aside from the fact that your job in your cubicle selling new cardstock is an inherently different skill set than trying to catch a football with Malcolm Jenkins shadowing and hanging all over you, legally your jobs are different. The NFL players are not “at will” workers. The NFL players have a labor union that is called the NFL Player’s Association. That means that their players, the owner’s conduct, and the contracts and work that arises from that relationship are governed by union agreements between the NFL Players Association and the Owners. This agreement is known as the Collective Bargaining Agreement. Under this agreement and since they are not “at will” workers, owners may not fire a player or even discipline them without first agreeing to this authority in their collective bargaining agreement. Non-at will employees that are fired must be fired or disciplined for cause (breach of contract, conduct unbecoming, insubordination etc.) and those causes must be included in the CBA. On top of that, any of these actions, even if they are “for cause” are subject for review with an independent adjudicator.
So, naturally the next question is:
Did the NFL Owners and the NFLPA previously agree to this form of discipline for not standing for the National Anthem?
Again, good old law school answer: It depends.
The Miami Dolphins, when announcing their change in what they called “Proper Anthem Conduct,” placed this behavior under an umbrella entitled “Conduct Detrimental to the Club.” It is important that this is distinguished as such in their potential rule and disciplinary rules, because of the player conduct contract signed by each player upon joining the league and which is covered by the CBA. In the contract, there is a clause that requires a player to “conduct himself on and off the field with appropriate recognition of the fact that the success of professional football depends largely on public respect for and approval of those associated with the game.” It further states that “personal conduct [is] reasonably judged by the club to adversely affect or reflect on the club.” Think about this like the Federal Government giving guidance on personal conduct but leaving it mostly to the states to decide what that conduct is. In essence, it is a federalism type clause and gives the team broad authority to determine what is “conduct detrimental to the team.”
Article 42 of the CBA gives teams the power to impose a suspension of up to four games, or a fine of up to four weeks pay, for “conduct detrimental to the club.” Understanding this, the discipline as described by the President (first-time offense=one game suspension, second-time=full season suspension) is clearly not legal under even that part of the CBA, but a modification of such may be plausible. Article 42 also discusses a penalty schedule for infractions. These infractions are expressly defined and do not fall under the general “conduct detrimental to club” label. There is a weight clause penalty where teams are limited in what they can fine a player for coming to camp overweight. Anything specific like this reflects collective bargaining between the two parties, meaning the NFLPA agreed to it. Article 42, however, does not discuss a penalty for the national anthem conduct. Using a plain meaning interpretation of the CBA, a team may be able to invoke the general “conduct detrimental” language and assert it has the right to suspend a player up to four games. But that would be the limit and even that would be subject, per the CBA, to an appeal to an independent arbiter.
That being said, the language of the Collective Bargaining Agreement of 2017 limits discipline that a team can impose and how that is done under Article 42. This is important as we don’t want players to show up to work one day and find out something that they always did is now against the rules. Workers need to be able to plan their actions with an understanding of the rules beforehand. As part of that process, Article 42 states the following.
Article 42, Section 2(a):
All Clubs must publish and make available to all players at the commencement of preseason training camp a complete list of the discipline that can be imposed for both designated offenses …and for other violations of reasonable Club rules.
For many teams, this time frame is rapidly approaching by this past weekend or next (July 18-27). A list of those dates can be found here. The Dolphins were beginning their training camp a little earlier on July 18th, and this is why they were trying to get the new policy out in time. This attempt to try to get their rules in right before the deadline, however, was preempted (overruled in legal speak) by the NFL Owners and NFLPA announcing discussions about the policy league-wide, so the Dolphins were unable to do so before they started camp. This means that at least for the upcoming season, this was not added to the team handbooks nor distributed to the players or players’ union for review in Miami and likely will not be able to be imposed by any team, barring an agreement, for the upcoming season unless this is resolved in the next few days.
Furthermore, the NFL CBA has an anti-discrimination article that limits the owner’s ability to fire or discipline players due to a variety of factors.
Article 49, Section 1:
There will be no discrimination in any form against any player by the NFL, the Management Council, any Club or by the NFLPA because of race, religion, national origin, sexual orientation, or activity or lack of activity on behalf of the NFLPA.
This language is very potent on the side of protesting players specifically as it relates to race or activity on behalf of the NFLPA. There is no question that the kneeling for the anthem would be considered speech that is political in nature, but it is specifically focused on what they perceive to be racial inequality in the United States. Although neither state nor federal law prevents employers from limiting political speech in many circumstances, employers must be careful to ensure that their policies do not have what in employment law is called “disparate impact” on members of a protected class. Disparate Impact refers to policies that may not be inherently biased but have a practical impact against protected individuals such as detailed in the NFL CBA Article 49, Section 1 (race, religion, national origin, sexual orientation, or involvement in the NFLPA). Why does this matter? For example, if an employer refuses to hire someone because of his support for the Black Lives Matter movement, there is a risk that the employer could be subject to a race discrimination claim. And taking the next step, if Colin Kaepernick argues that his protest is, as many have, related to the treatment of black individuals in the United States, it could be argued that a policy that fires him, would be “disparately impactful” towards the black community.
Moreso, since the NFLPA and the NFL is a union based job and not an at will position, the agreement is governed by the National Labor Relations Act of 1935. This bill was passed under FDR in an attempt to get workers and employers to collectively agree on work conditions. Under section 7 of that Act it states:
Sec. 7. [§ 157.] “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…”
With the president’s repeated public pressuring of owners to fire protesters in violation of the CBA, it could be argued that many of these protests are done, not just in response to racial tension, but in a concerted activity and effort of solidarity to the NFL Player’s union. Many of these “concerted activities” have blossomed with displays of solidarity among players and even with management. For example, Jerry Jones and the Dallas Cowboys marched out on the field and collectively took a knee as a show of solidarity as a player’s union, not as a display against police brutality or the mistreatment of black individuals in the country. Examples of these displays include taking a knee but also locking arms, or raising a fist. Regardless of the gesture, it can be argued that this activity is done under the umbrella of the NLRA of 1935 and under similar language found in the CBA of 2017 as “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
As you can see, what the NFL can do as it relates to the players and the anthem is complicated and it is actually a good step to see them meeting together to come up with solutions. The truth of the matter is if the NFLPA were to fight any limitations in court, they would have a more than decent shot of winning at the very least for the upcoming season and maybe even longer. So, it is good to see them discussing before this gets handled by a judge.
But one of the major problems with this debate, however, is it is being waged over 280 characters. As you can see, the question is not one that can really be answered in a tweet or even a well-crafted tweetstorm. But unfortunately the question can be done in such a succinct manner and we have become a people that want the answer to be as succinct as the question. My advice to many, and this is not related to just this problem, is to look at questions that are posted in 280 characters and take some time to figure out the nuances that make it so complicated. Because as one world leader once said about something he thought he could solve immediately, “who knew it could be so complicated.”