Following several seasons of controversy, NFL owners today adopted a new policy directed at football players who protest during the national anthem, with stiff penalties for teams when players kneel on the field.
“…a First Amendment challenge based upon the Jehovah’s Witnesses litigation from the 1940s… may be the best avenue for the players.”
Labor law expert William Gould, professor emeritus at Stanford Law School, who served as chairman of the National Labor Relations Board in the 1990s, discusses teams and players’ rights and how this new policy might play out.
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.
Teams will be fined if their players kneel on the field or sidelines. Is the new policy on national anthem protests contractually legal?
The question of so-called personal conduct in the best interest of the game is generally a matter for the discretion of the Commissioner. A challenge may be maintained but any dispute about this rule or its implementation would be resolved in a hearing before a representative or appointee of the Commissioner—this is the procedure that has been followed in high-visibility disputes relating to Tom Brady and those relating to domestic violence.
Can team owners enforce this new policy?
Reports about enforcement are that a fine will be imposed upon the team—presumably by the league—and the team may fine the offending player.
Do players have any recourse if they disagree with the new policy?
Any recourse to existing dispute procedures is likely to be futile because they are controlled by the Commissioner who was responsible for the policy. Since President Trump appears to have sparked the controversy and policy (and thus supplied the requisite state action), a First Amendment challenge based upon the Jehovah’s Witnesses litigation from the 1940s involving the right not to salute the flag may be the best avenue for the players.
The NFL may distinguish those cases as they will argue that here they are losing money. This argument could depend upon proof, though baseball arbitration involving John Rocker suggest that free speech is protected no matter how offensive.
Finally, an attempt to bring this to the National Labor Relations Board (NLRB) might fail if the dispute is deemed to arise over a societal protest rather than working conditions, though it could be argued that now the dispute is about work rules and the NLRB has viewed worker free speech to be protected. However, the Trump NLRB might rely upon cases that have left some controversial speech unprotected on, for instance, the grounds that it is inflammatory speech and thus disrupts the enterprise.
Source: Sharon Driscoll for Stanford University