The National Football League Players’ Association has filed a filed a non-injury grievance on behalf of free agent safety Eric Reid. As detailed on SI, Reid—who as a member of the San Francisco 49ers joined Colin Kaepernick in kneeling during the National Anthem—separately filed a collusion grievance last Wednesday.
The NFLPA charges that an unnamed team “appears” to have based its decision to not sign Reid on his role in the national anthem debate. Specifically, the NFLPA contends that this team became uninterested in the 26-year-old former first-round pick after he expressed that he would not comply with a potential team policy that required players to stand during the national anthem. Published reports indicate that Reid, a starting safety over his five-year career and a former Pro Bowler, has visited only one team this offseason—the Cincinnati Bengals. During Reid’s visit, Bengals owner Mike Brown reportedly pressed Reid on whether he intends to protest the anthem during the 2018 season. Reid left the Bengals without a contract offer.
The timing of the NFLPA’s grievance is noteworthy. It comes almost immediately after Washington Post football writer Mark Maske revealed that the NFL might delegate national anthem policies to individual teams. This means that some NFL teams could decide to sanction players for kneeling next season (more on that below).
The NFLPA is categorically opposed to teams mandating that players stand for the anthem. Through its grievance on behalf of Reid and other potential legal actions, the NFLPA can argue that individual teams requiring players to stand for the anthem would violate the CBA as well as federal labor, antitrust and anti-discrimination laws.
The NFL’s uncertain legal authority to require that players stand for the anthem
It’s safe to say the NFL never expected that the playing of the national anthem before games would become a multi-year, politically charged controversy. Before 2009, the anthem was played while NFL players prepared for games in their respective locker rooms. Beginning in 2009, the league opted to play the anthem while players were on the field.
This seemingly minor change in presentation was made in coordination with television networks and league sponsors, including the National Guard. It also went largely unnoticed—until 2016, when Kaepernick began kneeling during the anthem. Kaepernick attributed his protest to concerns about racial inequalities and the treatment of minorities by law enforcement.
The kneeling spurred intense political debate. Some argued that Kaepernick’s peaceful protest embodied the fundamental virtues of free speech; others insisted that it was disrespectful to veterans and the military. Soon thereafter, additional NFL players partook in varying forms of anthem protest. Still others began protesting last September in the aftermath of comments by President Donald Trump. During a campaign rally for U.S. Senator Luther Strange in Alabama, Trump asked owners of NFL teams with protesting players to declare, “Get that son of a b—- off the field right now. Out. He’s fired. He’s FIRED!”
Whether one agrees or disagrees with NFL players protesting, the relevant legal question is whether they can protest while remaining in compliance with employment responsibilities. Many have (correctly) noted that the First Amendment protects protesting players. Some, however, have misinterpreted the scope of that protection. The First Amendment ensures that the government cannot incarcerate, fine or otherwise punish players for protesting the anthem. The same protection is true for other persons in the country. However, the First Amendment does not determine whether private businesses—here, the NFL and NFL teams—can issue employment sanctions for unionized employees who protest.
The NFL has no policy regarding player protests while the anthem is played. There is no league rule requiring players to stand during the anthem. Congruently, there is no league rule prohibiting players from partaking in a form of protest during the anthem.
The closest relevant language is found in the NFL’s “game operations manual,” a league-authored document that concerns the duties and rights of teams while hosting NFL games. The manual is intended to create uniform policies for how teams operate and collaborate in the production of games. To illustrate, the manual dictates the number of towels and soft drinks that must be made available to visiting teams’ players. As we know quite well from Deflategate, the manual also instructs how teams handle footballs before games.
The manual is not collectively bargained with the NFLPA. For this reason, the manual is vulnerable to heightened legal scrutiny—at least to the extent it regulates players’ wages, hours and other conditions of employment. To wit, if players challenge provisions of the manual in court, those provisions could face review under federal antitrust law. In an antitrust claim, the players would argue that competing businesses (that is, the teams) conspired in anti-competitive ways to harm employment opportunities for players. In contrast, if a CBA provision is challenged in court, it is exempt from antirust law because the union (NFLPA) agreed to it.
The game operations manual requires that players be on the field during the playing of the national anthem. Importantly, however, it does not that require players stand for the anthem—it only encourages them to stand:
“The National Anthem must be played prior to every NFL game, and all players must be on the sideline for the National Anthem. During the National Anthem, players on the field and bench area should stand at attention, face the flag, hold helmets in their left hand, and refrain from talking . . . Failure to be on the field by the start of the National Anthem may result in discipline.”
NFL commissioner Roger Goodell has offered similar sentiments. While he has expressed a preference for players to stand during the anthem, he has also sharply criticized President Trump for making “divisive comments” about protesting players. League spokespersons have likewise noted that players are not required to stand for the anthem.
There is one last piece to this legal puzzle. At least in theory, the NFL could interpret Article 46 of the CBA in such a way as to justify sanctioning a player for not standing during the anthem. Article 46 empowers the commissioner to punish players “for conduct detrimental to the integrity of, or public confidence in, the game of professional football.” If Goodell attributed declining TV ratings and loss of sponsorships to the anthem controversy, he might characterize player protests as conduct detrimental. However, Goodell has given no indication that he is interested in making such a deduction or that he believes it to be true.
Teams’ uncertain legal authority to require that players stand for the anthem
The ability of NFL teams to punish players for not standing during the national anthem is also debatable. A team could attempt to justify a sanction on the player’s employment contract with the team. Every player is required to sign the standard NFL player contract. It contains several provisions that a team might invoke.
For instance, Paragraph 2 of the standard player contract requires that a player “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.” This employment obligation is worded in a way that could capture almost anything. To that end, a team could argue that fan criticisms of protesting players, lost sponsorships and declining TV ratings—they dropped 9% from 2017 to ’18—show that standing for the national anthem damages “public respect” for the NFL.
On the other hand, the protesting player could argue that such protests are considered acceptable by Goodell and enjoy support from many Americans. Further, the players would emphasize that peaceful kneeling should not be considered “offensive”—in fact, in the religious context, kneeling is often associated with reverence to a higher power. Also, declining TV ratings might also have nothing to do with the national anthem. They could simply relate to the consequences of “cord-cutting” and more viewership competition for the NFL in terms of Netflix, Hulu and other popular streaming services. The player and NFLPA would also stress that Paragraph 2 was never intended to cover national anthem protests and has never been used as such.
Alternatively, a team might invoke Paragraphs 9 and 11 of the standard player contract. These paragraphs authorize the team to terminate the contract of a player whose “personal conduct [is] reasonably judged by club to adversely affect or reflect on club.” While these paragraphs concern contract termination, rather than contract sanction, a team might nonetheless cite them to support a sanction—after all, if these paragraphs authorize termination, they might also authorize lesser forms of employment punishments, such as fines or suspensions. However, as noted above, the players could insist that anthem protests does not harm teams. Also, these paragraphs relate to contract termination, not sanction.
The collective bargaining agreement could also aid a team in punishing a player. Article 42 of the CBA concerns “club discipline.” This portion of the CBA contains a clause for “conduct detrimental to club” and, under certain circumstances, it authorizes a team to impose a suspension of up to four games or a fine of up to four weeks pay. Those circumstances are greatly limited by a discipline schedule that caps penalties for certain types of misconduct. For instance, during the 2018 league year, a team can’t fine a player more than $665 for each pound he is overweight and it can’t fine him more than $2,490 for throwing a football into the stands.
The penalty schedule does not mention the national anthem. This suggests that a team could attempt to classify protesting the anthem as “conduct detrimental” and thus be capable of warranting a fine or suspension of up to four games.
Article 42 also stresses that NFL teams must “publish and make available” a complete list of disciplinary actions at the start of preseason training camp. This is important in regards to the possibility that the NFL might delegate rulemaking about the anthem to teams: if a team intends to impose a fine or suspension of a player for protesting the anthem, notice must be given when training camps open in July. Article 42 also requires that teams punish players for the same offense in a uniform manner, meaning a team can’t decide to punish a rookie and not punish a veteran star for an identical offense.
The NFLPA would use the grievance process described below to counter a team imposing a national anthem rule. The NFLPA would stress that a team can’t punish a player for conduct the league considers to be permissible. Article 2 of the CBA makes clear that the provisions of the CBA supersede any other agreement—including individual team rules—affecting the terms and conditions of employment of NFL players. The CBA does not explicitly forbid protesting the anthem, and both the game operations manual and statements by league officials make clear that protesting is permissible. On the other hand, the CBA does not expressly authorize protesting. And, as discussed above, several terms in the CBA and the standard player contract (which is part of the CBA as an appendix) could be interpreted to forbid protesting.
The grievance process
The anthem controversy could trigger a lengthy and multi-faceted legal fallout for the NFL and team owners. As explored in other SI articles, both Kaepernick and Reid have filed collusion grievances against the league. Per Article 17 of the CBA, these two grievances require the players to show that two or more teams, or the NFL and least one team, conspired to deny them of the right to sign with a team. It remains to be seen if the players have sufficient evidence to show such a conspiracy. The fact that NFL team owners are worried about Trump punishing the league over the anthem could help the players’ grievances.
The NFLPA’s grievance on behalf of Reid is different in an important way. While collusion requires proof that multiple teams (or the NFL and at least one team) conspired against a player, the NFLPA’s claim on behalf of Reid concerns the conduct of only one team. The grievance will follow the procedures for non-injury contract disputes contained in Article 43. A neutral arbitrator will review the arguments over whether a team can refuse to sign a player over the anthem. The team is likely to assert there were other, football-related reasons for not signing Reid. The team could also point out that it is under no obligation to sign any player. The grievance could also explore the larger issues described above—and, namely, whether teams can take adverse actions against players for protesting the anthem. The process would take months to play out and would involve review of briefs, evidence and witness testimony.
At the end of the grievance, the arbitrator would issue an award in favor of either the NFLPA or the NFL. The award is final, though the losing side could file a lawsuit in federal court to challenge the award. Such a lawsuit would face very long odds, as federal courts review arbitration awards with a high degree of deference.
The possibility of additional remedies through the NLRB, EEOC and lawsuits
There are other legal avenues for players whose employment in the NFL is allegedly harmed in some way by their anthem protest.
For one, the player and the NFLPA could petition the National Labor Relations Board. They would assert that an NFL team denying a player a chance for employment, or punishing an existing player, runs afoul of Section 7 of the National Labor Relations Act. This section protects union members when they engage in a concerted activity that advances the union’s bargaining interests. Here, such an activity would comprise demonstrating or protesting during the playing of the national anthem. The player and NFLPA would insist that any workplace rule denying the chance to protest must be collectively bargained.
A player could also file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). The EEOC is the federal agency that administers and enforces civil rights laws. One such law is Title VII of the Civil Rights Act of 1964. It prohibits discrimination of employees and prospective employees on account of several demographic categories, including race. An African-American player might contend that being fined, suspended, released or not signed on account of protesting the anthem is prima facie evidence of racism. In response, the league or team would likely contend that the relevant punishment is not about the player’s race but rather about protecting the NFL’s business interests with fans and sponsors. The league or team might also note that players appear to be protesting the anthem for different reasons. Some players are protesting to bring awareness for racial justice while others may be protesting to convey a political point about Trump.
After review by the EEOC, a player could then sue the NFL or a team for discrimination. In addition, if a team speaks out against a player over his protest, the player could argue the comments are defamatory. This could give rise to a defamation claim. There would be a number of hurdles to any defamation lawsuit, including that the CBA might preempt such a lawsuit (a court may consider the player’s grievance procedure under Article 43 to be a final resolution for a defamation claim). Also, statements of opinion are not viable for defamation claims—this means that if a coach or owner called a player “un-American” that probably would not be defamatory since it’s a statement of opinion, rather than one about a measurable fact. A player would also be a public figure and thus have to show that “actual malice”. As a result, the player would need to prove the coach or owner either knowingly stated false and defaming information or had reckless disregard for the information’s truth or falsity.
There is also the possibility of an antitrust claim under Section 1 of the Sherman Antitrust Act. While the CBA exempts antitrust claims when those claims relate to terms and conditions found in the CBA, the CBA is silent on the anthem. This could lead protesting players to argue that teams punishing players over anthem protests constitutes an infringement of their working conditions. These players would contend that teams and the league have conspired to permit such a punishment and that it is anti-competitive since it denies fans the chance to see certain players. The league would argue such a claim is frivolous since while the CBA doesn’t mention the anthem, it contains sweeping language that surely covers it.
Teams need to be careful to avoid communications that might trigger collusion claims
As a final point, NFL owners and team executives need to be very mindful of their communications. If those owners and executives call, text or email their counterparts on other teams to discuss potential rules to punish players for protesting the anthem, they might unwittingly give rise to additional collusion claims. Collusion is about two or more teams conspiring to deny players of collectively bargained rights. If teams talk about specific players and how to approach those players, they might inadvertently produce evidence of collusion.
If the NFL wants to avoid a legal mess, it might want to rethink its potential plan to delegate to teams how to handle anthem protests. An approach less likely to cause controversy would be for league officials to simply discuss the topic with their NFLPA counterparts. Together, they could try to find a commonsensical solution—much like other leagues and players’ associations do.
Michael McCann is SI’s legal analyst. He is also the Associate Dean for Academic Affairs at the University of New Hampshire School of Law and co-author with Ed O’Bannon of the new book Court Justice: The Inside Story of My Battle Against the NCAA.