By Benjamin Sachs
NFL team owners this week decided that players will no longer be allowed to take a knee during the playing of the national anthem. And if they do, they will be subject to punishment and their team will be subject to fines.
The policy is also illegal — for a host of reasons. The clearest illegality derives from the fact that the league adopted its new policy without bargaining with the players union. When employees, including football players, are represented by a union, the employer — including a football league — can’t change the terms of employment without discussing the change with the union. Doing so is a flagrant violation of the employer’s duty to bargain in good faith.
Now that the owners have made it a workplace rule to stand during the anthem or stay in the locker room, any player who takes the field and takes a knee is protesting an employer rule. And that is unquestionably protected by federal labor law.
Finally, there is a serious free speech problem with the owners’ rule. In general, the constitutional right to free speech applies only to censorship by government entities, not to what a private sector employer like the NFL does. But there are two reasons why the players have a viable free speech claim.
The first is that the president of the United States has been actively involved in the league’s decision-making process. In an earlier round of the protest dispute, President Trump called on the league to discipline Colin Kaepernick for his leadership of the anthem protests and threatened to use the tax code to punish the NFL if they allowed them to continue. Vice President Mike Pence walked out of a 49ers game where anthem protests were planned.
What’s more, the owners have made clear that their adoption of the new rule was made in response to presidential intervention: They believe that if they do not ban the protests, the president will continue to make the protests a national issue and thereby negatively affect the league’s income stream.
Also reported in:
"The NFL’s New “Take a Knee” Ban Violates Federal Labor Law," May 25th, 2018 - SEJAL SINGH
"NFL KNEEL PROTEST BAN UNCONSTITUTIONAL, SAYS EXPERT," TOM PORTER, Newsweek, 5/26/18
"Harvard professor: NFL ban on anthem protests is illegal,", JOHN BOWDEN, The Hill, 05/25/18