To Kneel or Not to Kneel? That is the Question for the NFL

On Wednesday, May 23, the National Football League (“NFL”) announced a new rule in the game operations manual regarding players and team staff kneeling in protest during the National Anthem.

Previously, players and staff were required to be on the field for the National Anthem but the rules did not specify whether players and staff were required to stand or were prohibited from protesting. Now, players and staff will now be required to either stand on the field for the National Anthem or remain in the locker room. Teams will be fined by the NFL if their players and staff “do not show respect” for the Anthem and teams will also have the option of fining and/or disciplining players and staff on their own for violating the rule.

The NFL owners approved the rule by a voice vote of 31-0, with one abstention coming from the San Francisco 49ers owner, Jed York. The National Football League Players’ Association (“NFLPA”) issued a statement saying that it will review the rule and file a grievance if it is in conflict with the collective bargaining agreement (“CBA”).

But what legal ramifications does this rule have, if any? Generally, the First Amendment right to free speech does not apply to employment in the private-sector. That means the NFL and its teams, as private employers, can discipline and fire players and staff for their speech. However, private employers cannot make unilateral rule changes that conflict with a CBA in place. While this rule is in the game operations manual, which is not subject to collective bargaining, if the NFLPA believes that the rule is in violation of the CBA, it could file a grievance against the NFL to overturn it.

Furthermore, according to UCLA law professor Eugene Volokh, many states have laws that prohibit private employers from punishing employees that take part, or refuse to take part, in political activity. However, because the rule gives players and staff the option to stay in the locker room while the Anthem is being played, it probably will not violate these various state laws.

There are other laws to consider. Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employment discrimination on the basis of race in the workplace, among other protected characteristics. Employees are also protected from retaliation under Title VII for complaining about a violation of the statute. Discrimination and retaliation claims under Title VII could come into play if NFL uses the new rule to punish those who kneel to protest race discrimination. Though the NFL may argue that the punishment is for violating the rule, it does not seem like too much of a stretch to argue that the punishment would be in retaliation for kneeling players opposing what they reasonably believe to be discrimination in the workplace.

Furthermore, the National Labor Relations Act (“NLRA”) protects employees’ rights to “engage in concerted activity for mutual aid and protection” and to advocate for political causes that could impact their rights in the workplace. The NFL could also face retaliation claims under this statute as well if players and staff kneel to protest the disciplines of others under the rule.

Going forward, expect to see some players and staff ignore this new rule and their teams fined by the NFL. While some teams will pass the fines on to their employees, New York Jets owner Chris Johnson has already said that he will not do this. Ultimately, this uneasy compromise may not hold for long, and the controversy surrounding kneeling in protest during the Anthem is far from over.