A Player’s Right to Kneel

President Trump reignited the heated debate surrounding National Football League players taking a knee during the national anthem to protest racial oppression and police brutality. The President raises an interesting legal question: can team owners “Fire or suspend!” players who choose to kneel.

The protests began last year when Colin Kaepernick, then a quarterback for the San Francisco 49ers, knelt during the national anthem. Kaepernick’s courage to (not) stand for what he believes in successfully brought attention to the issue; however, it also may have cost him his job. He recently filed a demand for arbitration, alleging collusion against the NFL and NFL team owners for prohibiting him from gaining employment in the League.

The controversial protest received national coverage, yet remained relatively innocuous until President Trump’s provocative slew of tweets. It has since spread to high school sports, college sports, women’s soccer, city councils, and has even made its way to other parts of the world.

Whether or not you agree with the form of protest, the real issue is if President Trump or the NFL team owners can legally prevent it.

Every player effectively signs the same contract, which provides NFL teams fairly broad discretion to fire a player. There are two relevant provisions that can be interpreted as grounds to dismiss a player who chooses to kneel during the national anthem: sections two and eleven. The former states that the player must “conduct himself on and off the field with appropriate recognition” that “football depends largely on public respect.” The latter allows the NFL team to terminate the player’s contract if he engages in conduct that “adversely affect[s] or reflect[s]” on the team.

President Trump and Vice President Pence’s adamant disapproval of the protest has lessened the “public respect” of the players and the game. Similarly, diminished public respect seemingly would qualify as an adverse effect on the team.

However, the NFL players may have labor law on their side. Penalizing the players would arguably violate § 7 of the National Labor Relations Act (“NLRA”), which provides that employees have the right to engage in “concerted activities for the purpose of . . . mutual aid or protection.” A player, such as Kaepernick, would not be afforded the labor law’s protection if he was alone in the protest – rather, the activity must be collaborative in nature. Therefore, the activity clearly is concerted as hundreds of players from NFL teams have joined in the protest.

Section 7 also states that employers may not threaten adverse consequences if employees engage in such protected conduct. While “adverse consequences” is not comprehensively defined, firing or benching players who would otherwise be a part of the team certainly seems to qualify.

The Supreme Court held that § 7 even protects employees’ concerted activities that are not “directed at conditions that their employer has the authority or power to change or control.” Eastex, Inc. v. N.L.R.B., 437 U.S. 556, 562 (1978). Therefore, the NLRA should extend to NFL players’ political protests seeking to draw attention to racial oppression and police brutality in the U.S.

For now, the players continue to kneel for the national anthem and stand up for racial justice in spite of potential, questionably legal, repercussions.

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