Can NFL teams make hiring and firing decisions based on anthem protests?

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Given the recent uptick in news regarding the anthem controversy, it’s time to address some of the fundamental questions relating to the situation.

The goal of this article is to take a fairly complicated and polarizing societal question and analyze it, objectively and thoroughly, from the perspective of labor and employment law. (For those wondering why they’d be inclined to read a legal analysis from some Internet hack who writes about football, that’s a very fair question. I practiced law for 18 years, specializing over the final 14 or so in matters of labor and employment law, both from the employer’s perspective and from the employee’s perspective.)

The first challenge for anyone considering this issue as a matter of labor and employment is far easier said than done: You need to set aside whatever your personal beliefs may be regarding NFL players protesting during the national anthem. Whether you like it, whether you hate it, or whether you land somewhere in between, if you forget your own feelings on the issue, you’ll be able to better understand the legal issues relevant to the situation.

Along these same lines, you need to forget about the question of whether anthem protests are “bad for business.” (Some presume that the protests have hurt the NFL’s business; the evidence, however, is inconclusive. Yes, TV ratings are down, but not as far down as TV ratings generally. Also, revenues — and in turn the salary cap — continue to rise. For the fifth straight year, the salary cap has increased by more than $10 million per team.)

Actually, let’s assume that the NFL’s teams subjectively have concluded that anthem protests are indeed “bad for business,” inconclusive evidence of a negative impact notwithstanding. If that’s the case, the question becomes whether the NFL can make hiring and firing decisions based on anthem protests that are determined to be “bad for business” under the principles that apply to the employment relationship between NFL teams and NFL players.

For any issue arising under the relationship between NFL teams and NFL players, the question begins with the Collective Bargaining Agreement. However, the Collective Bargaining Agreement between the NFL and the NFL Players Association says nothing about the national anthem. The rule regarding the anthem appears in the NFL’s game operations manual, which provides in pertinent part as follows: “The national anthem must be played before 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.”

This rule, adopted in 2009 as part of the league’s decision to move the players from the locker room to the sideline during the national anthem, was drafted by the NFL. By using “must” in connection with the playing of the anthem and the players’ presence on the sideline but the non-mandatory term “should” when referring to standing during the anthem, the NFL created a loophole in the policy, making it different from the NBA rule that mandates standing: Players must be on the sideline for the anthem, and players should (not must) stand.

When the anthem controversy first emerged in August 2016, the NFL could have quickly revised the language of the rule, or the NFL could have taken the position that “should” as a practical matter means “must” within the broader context of the rule. After all, the league has brought them out of the locker room not to protest during the playing of the national anthem but to be props in the broader effort to wrap The Shield (which looks a lot like the flag) in the flag.

The fact that the rule didn’t appear in the CBA (which is the product of comprehensive collective bargaining between the NFL and NFL Players Association regarding the terms of employment) most likely would have given the league the ability to unilaterally change the rule. In other words, the league possibly could have simply changed the rule on the spot, without talking to or bargaining with the union.

Players are encouraged but not required to stand during the playing of the National Anthem.”” data-reactid=”29″>But that’s not what the league did. The NFL’s first comment on the matter was this: “Players are encouraged but not required to stand during the playing of the National Anthem.”

That was the moment the NFL confirmed that players have permission to sit, kneel, whatever during the anthem. And that was the moment that it became inappropriate to make hiring and firing decisions based on whether a player chooses to exercise the league-given right to not stand. After all, what good is any right in employment if exercising that right will get you fired?

When the anthem controversy reached new heights in September 2017, fueled by an attack on the NFL and protesting players by the President, the league did not change the rule. Instead, the league reiterated the fact that players have the right to protest, if they choose to do so.

would be protected,” the union said in a statement issued last month, after Dolphins owner Stephen Ross said that he would prohibit kneeling (and then backtracked). “We are glad that both the Houston Texans and Miami Dolphins have clarified their positions to be consistent with what was confirmed with our union leadership, and we expect all other NFL teams to maintain the same commitment to protecting those rights.” (The NFL has at no time disputed the notion that Goodell and Mara provided assurances that the right of players to demonstrate would be protected.)” data-reactid=”32″>“During this past season, we received assurances from both Commissioner Roger Goodell and the Chairman of the Management Council, John Mara, that the right of players to demonstrate would be protected,” the union said in a statement issued last month, after Dolphins owner Stephen Ross said that he would prohibit kneeling (and then backtracked). “We are glad that both the Houston Texans and Miami Dolphins have clarified their positions to be consistent with what was confirmed with our union leadership, and we expect all other NFL teams to maintain the same commitment to protecting those rights.” (The NFL has at no time disputed the notion that Goodell and Mara provided assurances that the right of players to demonstrate would be protected.)

This is the most important point to keep in mind when addressing whether the NFL may make hiring and firing decisions based on a player’s inclination to participate in anthem protests: The NFL created the right to protest in 2009, the NFL confirmed the right to protest in 2016 and the NFL reiterated the right to protest in 2017.

Protecting the rights of a player to protest means so much more than allowing players who are currently employed by a team to protest. It also includes prohibiting activities that would tend to discourage a player from exercising his right to protest. Cutting a player for protesting is the most obvious contradiction of a player’s right to protest. Not hiring a player who intends to protest is no different than that.

These realities remain true even under the assumption that anthem protests are bad for business. If anthem protests are truly bad for business, the league knew or should have known that anthem protests would be bad for business in August 2016, when the NFL confirmed that players have the right to not stand during the anthem. And if at some point after confirming in August 2016 that players have a right protest the league realized that it’s bad for business and something should be done about it, the NFL should have changed its rule.

That’s where traditional principles of labor law becomes relevant to the situation. Although the league may have been able to unilaterally change the anthem policy in the early days of the controversy, the league’s express confirmation of the players’ right to protest in August 2016, the reiteration of that endorsement in 2017, and the magnitude of the issue arguably has transformed this specific term of employment into what the law regards as a mandatory subject of bargaining. This means that, if the policy has morphed into a mandatory subject of bargaining, the league can’t change the policy without engaging in the traditional back-and-forth and give-and-take with the union.

The NFL and NFLPA undoubtedly would disagree on whether changing the anthem policy requires bargaining. The NFL and the NFLPA also would likely disagree on whether hiring and firing decisions can be made based on whether a player has exercised or has stated an intention to exercise his league-given right to protest. At some point, that issue may be hashed out in a legal proceeding.

hypothetical.” Amid mounting examples of teams asking prospective employees questions about their plans to protest, the NFL tells PFT that it teams are allowed to pose such questions.” data-reactid=”38″>The league has declined in the past to comment on whether players can be disciplined by individual teams for declining to stand, brushing such questions off as “hypothetical.” Amid mounting examples of teams asking prospective employees questions about their plans to protest, the NFL tells PFT that it teams are allowed to pose such questions.

The NFLPA declined comment on question prospective employees can be asked about kneeling during the anthem. However, a source with knowledge of the union’s analysis of these issues tells PFT that the union believes such questions cannot be posed to players.

The argument against asking those questions is simple. Since the league has given, confirmed, and reiterated the right to protest during the national anthem, players should not be penalized for exercising or stating an intent to exercise those rights. Questions aimed at determining whether a player would exercise those rights therefore become evidence of an intention to make employment decisions based on whether a player will exercise a right that the NFL has given to all players.

right to complain about unsafe working conditions to the federal Occupational Health and Safety Administration. This means that hiring or firing decisions can’t be made based on past OSHA complaints or a propensity/intention to make future OSHA complaints. This also means that, during a job interview, the owner of the business can’t ask, “If you see an unsafe working condition, will you promise not to file a safety complaint with OSHA?” It also means that, on the eve of a job interview, an employee can’t be asked, “Will you commit to never exercising your right to make a safety complaint with OSHA? Before answering, please be aware that if you won’t make this commitment, you won’t be interviewed.”)” data-reactid=”41″>For example, employees have a right to complain about unsafe working conditions to the federal Occupational Health and Safety Administration. This means that hiring or firing decisions can’t be made based on past OSHA complaints or a propensity/intention to make future OSHA complaints. This also means that, during a job interview, the owner of the business can’t ask, “If you see an unsafe working condition, will you promise not to file a safety complaint with OSHA?” It also means that, on the eve of a job interview, an employee can’t be asked, “Will you commit to never exercising your right to make a safety complaint with OSHA? Before answering, please be aware that if you won’t make this commitment, you won’t be interviewed.”)

This entire issue exists because the NFL deliberately or accidentally used “should” instead of “must” when writing the anthem policy nearly a decade ago, because the league confirmed that standing isn’t mandatory in August 2016 after Kaepernick was spotted sitting during the anthem, and because the league reiterated to the NFLPA in 2017 that players have the right to protest.

The right to protest given, confirmed, and reiterated by the NFL becomes hollow and meaningless if teams can cut or not sign players who have protested or who will potentially protest in the future. Posing questions to players about their intention to protest becomes direct evidence of an intent to discriminate against players based on the exercise of a right given by the NFL, confirmed by the NFL, and reiterated by the NFL.

Eric Reid by the Bengals and the ultimatum given to Colin Kaepernick by the Seahawks are more than simply a P.R. problem. They are a legal problem, one that eventually could spark separate grievance proceedings against the league.” data-reactid=”46″>If it truly is “bad for business” when players kneel during the anthem, it was horrendous for business when the NFL created the right to protest during the anthem in 2009, when the NFL confirmed the right to protest during the anthem in August 2016, and when the NFL reiterated the right to protest during the anthem in 2017. That’s why the questions posed to Eric Reid by the Bengals and the ultimatum given to Colin Kaepernick by the Seahawks are more than simply a P.R. problem. They are a legal problem, one that eventually could spark separate grievance proceedings against the league.

Regardless of whether it’s “bad for business” when players protest during the anthem, the NFL gave them that right, the NFL confirmed that right, and the NFL has reiterated the confirmation of that right. Making employment decisions based on the exercise of that right makes that right meaningless, which makes it flat-out wrong to consider past protests or plans to protest in the future when deciding whether to sign a player.



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