What Employers Knee-d to Know About NFL Anthem Protests

Last weekend’s National Football League (NFL) schedule featured some notable match-ups but none more hotly contested than President Trump’s call to arms (and knees) over players’ silent protests during the National Anthem.

Kneeling Gets a Rise Out of the President

For those who haven’t followed this issue, it began last year when Colin Kaepernick, a (now former) member of the San Francisco 49’ers, began kneeling on one knee during the pre-game playing of the National Anthem. Kaepernick said he wanted to draw attention to issues of racial injustice and police brutality.  Thereafter, a few other players here and there chose to emulate this practice.

Opinions on all of this are divided. Many say that that protests show disrespect for the flag, our country and everyone who served in the military to protect us.  Others contend that the protests honor the fundamental freedom of expression that the flag and our anthem symbolize.  In between are a great number of fans who believe that regardless of how valid one or the other of these beliefs might be, the pre-game ritual of playing the national anthem is not the proper time or place for a demonstration.

The issue came to a head this weekend.  First, President Trump gave a speech that included a stinging criticism of players who protested in this fashion.  He then suggested that the team owners should fire anyone who did not stand at respectful attention during the anthem and suggested that fans boycott the NFL until that happened.

On Sunday, players reacted in a variety of ways.  Some knelt during the anthem for the first time in their careers while many others locked arms with teammates in a show of unity.  Three full teams elected to remain in the locker room until the anthem concluded.  In general, the team owners appeared to support their players, including a few who appeared on the sidelines and stood arm-in-arm with their team.

No Leg to Stand On

Beyond the politics of all this, President Trump’s call for the protesting players to be cut from their teams and for a consumer boycott raises some interesting employment law questions. Can a team lawfully terminate a player for protesting during the National Anthem?  Probably, unless there is something specifically written into the player’s individual contract that would prohibit it.

First, it is generally understood that like all other employees in the private sector, the players have no First Amendment rights.  As we wrote in Red Hot and Blue: Controlling Political Talk at Work, private employers are free to regulate political activities and speech at their work sites.

Would standing arm-in-arm in unified defiance of the president’s speech be considered “protected concerted activity” under the National Labor Relations Act?  Unlikely since the players would simply be responding to a politician’s words, not to any actions or decisions by their employers that impact their working conditions.  Of course, the players are also covered by a collective bargaining agreement so their labor union can be expected to jump in if there is any hint of a player being cut from the team in violation of the contract.

Racial Claims On Shaky Footing

Obviously, there is a racial element to the protests.  Kaepernick himself has stated that his protest is rooted in issues of racial injustice, and many of those who emulated him have said the same.  Even so, federal and state discrimination laws would probably not protect the players even though they might contend that they are being retaliated against for opposing racial discrimination and harassment.  Title VII and its state law counterparts focus only on whether the employee is suffering retaliation for opposing discriminatory workplace practices, not for speaking out in general over issues of race.

Despite the lack of actual legal protections for the players, the owners seem to be standing (or kneeling) behind their players at this point.  However, what if the president’s call for a boycott actually led to a fan revolt over this issue?

Going Out on a Limb

Assume that a team elected not to cut a player after last Sunday’s protests but then changed their mind after they began to see empty seats and declining revenues as a result of a fan boycott.  The team might have to “cede the moral high ground” but could still contend that the termination was lawful since the employee’s political expressions were not protected.

There has been some talk cutting players on this basis might present a case of racially motivated “customer preference” under discrimination law.  Title VII has been interpreted to prohibit employment actions based on the preferences expressed by customers or clients (or preferences that the employer might believe exist), for employees of a particular race.  As an example, a retail store could not terminate a minority employee because they hear that White customers will not shop there, nor could a pizza delivery operation decline to hire an African American delivery driver to work in a predominantly White neighborhood.

Given the racial genesis of the protests, what if the player cut from the team after the boycott began could show – through opinion surveys or media polls, for example – that the boycott was predominantly the public’s pushback against the underlying racial opinions expressed by the protesting players rather than just the protests themselves?  Since the team chose not to fire him initially, the player might argue that he was let go only after the fans demonstrated their racial preferences against him and his beliefs.

That sounds like a stretch but this is an intriguing set of circumstances involving a very racially charged issue together with unusual juxtapositions of politicians, business owners and workers.  It seems ripe for a unique legal precedent.

Bottom Line

We expect this issue to simmer down shortly but it is unlikely to go away.  After all, Kaepernick remains unsigned by any NFL team and there is still significant debate as to whether this is the result of a league boycott or merely his 2016 job performance.  If more protesting players get cut and are unable to latch on with other teams, suspicions about the teams’ motivations might increase and bubble over.

Whether you care about football or not, this is going to be an interesting story as it continues to unfold.