Passions often run high in team sports—on and off the field. At the national level, professional sports have also become intertwined with patriotism, and players are expected to stand for the national anthem. This has made it a highly-visible arena for political demonstrations—the games sometimes reflecting the nation’s tensions. As NFL team members have taken to protesting racism in the United States, from police use of force to white supremacist marches on American streets, many kneeling during the anthem, passions are running especially high with even the president weighing in. In this Q&A, Professor William Gould discusses recent protests by NFL players and the law.
In 2016, 49er team player Colin Kaepernick, joined by teammate Eric Reid and others, started kneeling during the national anthem to protest police brutality and police shootings of unarmed black men. Did they have the right to make this kind of protest? Are there NFL rules that prohibit such actions?
There are no NFL rules that address this issue. The question of whether the players can quietly protest is a matter of first impression. There have been numerous cases in which football players have been disciplined for conduct which theoretically harms the reputation of the game, principally those cases involving domestic violence, abuse and the like. There are arbitration rulings (in football the commissioner is the ultimate arbiter, even though he is an employee of the clubs ) upholding penalties even where there is no showing of actual economic harm to the league. This contrasts with baseball where independent arbitrator rulings involving discipline for drugs- outside the subsequently developed testing, and speech have required a showing of losses like attendance.
This season, the demonstrations have spread—particularly after President Trump called for any player who kneels during the anthem to be fired. Can owners fire players for this kind of protest? What kind of rights do the player have? And the owners?
Secretary Steven Mnuchin, a recent guest on “This Week”, equated the requirement that players’ shirts be tucked with prohibiting protests, saying that the NFL has “all kinds of rules.” He urged owners to establish a rule forcing all players to stand during the national anthem to show respect for the military and first responders. Can owners do that?
The fact that he advocates a rule and that the commissioner supports the players’ position highlights the difficulty that the owners would have in adjudicative proceedings. This is more for show—the owners are unlikely to propose it and the players wouldn’t accept it.
Is there any legal motivation for owners to develop rules to stop the protests?
Their only motivation would be economic. In their heart of hearts some of the owners would like to have such a rule. But with at least 75 percent of the players being black and the protest concerned with racial injustice, any reasonably rational owner knows that this would set off a firestorm amongst the players. Though the union has negotiated a no strike clause, interference with the presentation of the games would be a real possibility. They might fear a fan boycott, which is exceedingly rare but possible. Attendance fell substantially after the ’94-’95 baseball strike, a phenomenon which led to the game’s tolerance of steroids to bring fans back. Trump surely knows all of this, but perhaps this topic is useful as a way to take the public attention away from North Korea, healthcare, infrastructure and Puerto Rico.
An expert in labor and discrimination law, William B. Gould IV has been an influential voice on worker-management relations for more than forty years and served as Chairman of the National Labor Relations Board (1994-98) and Chairman of the California Agricultural Labor Relations Board (2014-2017). As NLRB Chairman, he and his agency played a critical role in ending the longest strike in baseball history (1994-95)—and he was a salary arbitrator in the 1992 and 1993 salary disputes between the Major League Baseball Players Association and the Major League Baseball Player Relations Committee. Gould has been a member of the National Academy of Arbitrators since 1970 and has arbitrated and mediated more than 300 labor disputes. He is the Charles A. Beardsley Professor of Law, Emeritus at Stanford Law School.