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 shoots 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 over the weekend after President Trump called any player who kneels during the anthem a “son of a bitch” who should be fired. Can owners fire players for this kind of protest? What kind of rights do the player have? And the owners?

No discipline, let alone firings, can be imposed here. The hurdle would be some kind of showing of injury or losses but also that this outweighs player free speech rights, which arbitrators have recognized in the workplace so long as business is not disrupted. The First Amendment itself is not implicated because governmental action isn’t a requirement for free speech except in states like California and a smattering of others.