Over the last few days, there has been much discussion about NFL players kneeling during the singing of the National Anthem. The local papers provided pictures of Seattle Seahawks players taking a knee to protest social injustice, particularly regarding police relations with the African-American community. Prior to the Monday Night Football game between the Dallas Cowboys and Arizona Cardinals, the entire Cowboy team, including owner Jerry Jones, kneeled during the anthem.
The recent explosion of protests is in response to President Trump’s tweet regarding those who kneel during the anthem. To paraphrase, the President referred to those who kneel as SOBs and said that they should be fired.
In the aftermath, talk radio in particular and other outlets have tossed around the term “First Amendment rights” and “freedom of expression,” as well as similar statements. USA Today had a headline: “Trump Fumbles First Amendment Football.” While there may be issues of labor and employment law involved, the issue at hand is not a constitutional law.
First Amendment Rights
The First Amendment to the United States Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Over the years, the courts, particularly the United States Supreme Court, presided over numerous cases centered around First Amendment rights. It is crystal clear that the First Amendment, as well as all the amendments except for the Thirteenth Amendment, are with respect to a relationship between the government and the individual. For instance, in the seminal Supreme Court case Smith v. Oregon from 1990, a Native American tribe smoked peyote as part of its religious beliefs. The state of Oregon bans peyote as an illegal substance. The issue in that case was whether the First Amendment supersedes the state ban on Peyote. That was a case about the government, the state of Oregon, possibly infringing on a group of individuals’, the tribe’s, religious rights.
In pronounced contrast, the question of whether to disallow NFL players from expressing their displeasure by kneeling during the anthem is not a government issue. The question is whether the NFL and its owners should tolerate such behavior; neither the NFL nor its owners constitute the government. Therefore, any possible adverse employment consequence to players who kneel during the national anthem would not be a constitutional issue, but an employment law issue.
Personal Conduct Policy
Under the NFL’s collective bargaining agreement, or CBA, with the NFL Player’s Association, all individuals covered by the CBA can be terminated when they engage in “conduct detrimental to the integrity of and public confidence in the National Football League.” Arguably, this would include those who kneel during the national anthem. However, terminating a player for taking a knee during the national anthem while not terminating other players who engage in severe off-field activity like sexual assault and drug possession would open a major wrongful termination court case.
The Seahawks are still the biggest draw on a Sunday in the state. Their stance raises interesting legal questions. For employment and labor issues, contact the HKM law firm.
