President Donald Trump has suggested that the National Football League’s television ratings decline was caused by “fans seeing those people (players) taking the knee when they’re playing our great national anthem.” Trump has urged fans to “leave the stadium” when players kneel during the national anthem and suggested that NFL team owners fire players who kneel.

What, if any, discipline can NFL owners hand out to their players for kneeling during the national anthem?

Currently, the possibility of potential terminations or discipline seems remote. Owners, players, and coaches have responded uniformly to Trump’s comments: More than 150 players, coaches, and owners participated in a showing of defiance to protest against the President’s comments. The protesters either locked arms, knelt, or raised fists in silent protest and a rare showing of unity between labor and management.

Despite a long history of public, verbal sparring over numerous labor issues, even NFLPA Executive Director DeMaurice Smith and NFL Commissioner Roger Goodell gave separate, but similar, statements condemning the President’s comments. Smith tweeted that the NFLPA will “never back down when it comes to protecting the constitutional rights of our players as citizens…” and Goodell called the comments “divisive” and “demonstrating an unfortunate lack of respect for the NFL, our great game and all of our players….”

Nonetheless, many wonder what a team can do to discipline a player and what is the likelihood that such discipline would be upheld.

The relationship between NFL players and their respective owners and team are governed by an individual player contract and a collective bargaining agreement between the NFL and the NFLPA. These contracts contain numerous provisions concerning the rights of the League and its owners and the rights of the players.

The standard NFL player contract contains specific language that could empower an owner to act.

For example, paragraph 2, covering employment and services, states that the player agrees to “conduct himself on and off the field with appropriate recognition of the fact that the success of professional football depends largely on public respect for and approval of those associated with the game.” Paragraph 11, on player “skill, performance and conduct” also could be the basis for termination. It states that a team can terminate a player’s contract if the player “has engaged in personal conduct reasonably judged by the Club to adversely affect or reflect on the Club.”

Should a team fire a player for expressing his opinion and engaging in the protest, the player likely would file a grievance pursuant to Article 43 of the collective bargaining agreement. Article 43 allows players to file grievances for any dispute arising from their contract that does not involve an injury. Moreover, it allows players to avoid the commissioner’s serving as the arbitrator and to have their grievance heard before a neutral arbitrator chosen by agreement of the NFL and the NFLPA.

The player’s legal right to challenge team or League discipline for engaging in a protest would not be limited to their collectively bargained rights.

They can pursue state or federal law remedies as well. For example, a player could pursue relief before federal agencies such as the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC).

Section 7 of the National Labor Relations Act (Act) protects the rights of non-union and union employees. It guarantees the rights of employees to act together and engage in other concerted activities for the purposes of collective bargaining or other mutual aid and protection. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, Section 8(a)(1) of the Act makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of these rights. The NLRB may process a charge filed by the NFLPA or an individual player against the employer and seek redress to address any act taken against the employee in violation of their rights, including reinstatement to their former position.

Similarly, the EEOC could offer protection against the termination or discipline of players for engaging in protests. The law protects employees against discrimination. Any player who is a member of a class of employees that the law protects (e.g., African American players) could argue that the discipline he received for protesting the national anthem was related to his race. In addition, state laws may protect employee rights to express their first amendment rights without potential reprisal from their employers.

Ultimately, owners and players must listen to and respect the fans. As players express their views and opinions and owners decide if and how they should react, the voice of the fan and their reaction to these protests ultimately will determine the next steps in this very visible and polarizing reaction to the President’s comments.

 

 

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Photo of Gregg E. Clifton Gregg E. Clifton

Gregg E. Clifton is a Principal in the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as the editor of the firm’s sports law blog.

Mr. Clifton has extensive experience in…

Gregg E. Clifton is a Principal in the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as the editor of the firm’s sports law blog.

Mr. Clifton has extensive experience in the collegiate and professional sports world. He has advised numerous professional franchises on general labor and employment issues, including Title III ADA regulatory compliance and wage and hour issues. He serves as lead counsel for several Major League Baseball teams in their salary arbitration matters and has represented NCAA and NAIA collegiate clients regarding rules compliance, investigatory matters and in disciplinary hearings. In addition, he has handled Title IX investigations and compliance issues for NCAA and NAIA member institutions. Mr. Clifton has also worked extensively in the area of agent regulation and enforcement in professional and college sports and regularly provides counsel on issues relating to NCAA and NAIA amateurism issues and athlete eligibility questions. He has also served as an expert witness in matters involving sports agents’ work and responsibilities, as well as athlete compensation issues.

Prior to joining Jackson Lewis, he spent six years as Chief Operating Officer and Vice President of Team Sports for Gaylord Sports Management. He also served as President of the Athlete and Entertainment Division for famed sports attorney Bob Woolf’s firm, Woolf Associates, in Boston.

Mr. Clifton began his career as an Associate at Jackson Lewis where he focused his practice on traditional labor law. He continues to counsel clients in the areas of collective bargaining negotiations, representation cases, arbitrations and National Labor Relations Board matters.

Mr. Clifton frequently serves as an expert speaker to law schools, including Harvard University, Boston College, Hofstra University and Arizona State University, and bar associations regarding sports law issues, including agent regulation and salary arbitration. He is also often cited as an expert source in national news media for his commentary and opinion on legal issues in sports.