O Say Can You … Kneel? The legality behind firing NFL players for taking a knee during the National Anthem

TATIANA WASERSTEIN—On August 26, 2016, former San Francisco 49er Colin Kaepernick became the first NFL player to kneel during the national anthem to protest police brutality. Kaepernick explained that he is not going to “stand up to show pride in a flag for a country that oppresses black people.” Since then, several NFL players have continued the protest during the national anthem in efforts to call attention to social injustices.

On September 22, 2017, at a campaign rally for Senator Strange in Alabama, President Trump called for NFL owners to take drastic measures against players who protest the national anthem by kneeling. At the rally, Trump said, “you love to see one of these NFL owners, when somebody disrespects our flag, say: “Get that son of a b**** off the field right now. He is fired.” According to the president, those who kneel during the national anthem are disrespecting the American flag and offending those who fought to protect the U.S.

Are President Trump’s words legal?

Probably so. The President, like all Americans, has the right to free speech guaranteed by the First Amendment. Some argue that 18 U.S.C. § 227 makes the President’s words illegal. That statute makes it a crime for federal government officials to wrongfully influence a private entity’s employment decisions. However, because this law requires “intent to influence, solely on the basis of partisan political affiliation,” § 227 is probably not applicable. In fact, many Republicans and Americans from all political affiliations have chastised the President’s statements.

Are U.S. citizens required to stand during the national anthem?

Technically, yes, but there are no repercussions for not doing so. 36 U.S.C. § 301 explains the law for conduct during the national anthem. This law states that when a flag is displayed, all persons should face the flag and stand at attention, with their right hand over their heart. But, there is no penalty for violating this national anthem law.   

Can NFL owners actually fire players for kneeling during the national anthem?

First, there is the question of whether firing the players would be a popular thing to do. According to a Reuters poll, 58% of Americans are in favor of requiring NFL players to stand during the national anthem. This same poll found that 61% of Americans oppose firing players for failing to stand during the national anthem.

But, can NFL owners legally fire players for kneeling during the national anthem? The answer is actually more complicated than you’d think, but it is still probably yes. True, players have a First Amendment right to free speech just like all other Americans do, but this right only protects players from sanction by the government, not from their team or the NFL league, a private organization. Players’ rights as employees of a team are determined by contract: the player’s employment contract with the team and the collective bargaining agreement that governs the working conditions of one franchise in a league. Therefore, a player can be legally fired for kneeling during the national anthem if that action violates their contract in any way.

The standard NFL player contract (which every player signs) says that a player must 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.” This vague language can mean that a player is in breach if he is involved in a protest that offends the public. Also, players who have engaged in “personal conduct reasonably judged by the Club to adversely affect or reflect on the Club” can be fired. It is probably not difficult for a team owner to argue that disrespecting the national anthem reflects poorly on their team and thus provides a sufficient basis for firing a player.

If players were kneeling to protest their wages or certain workers’ rights, they would have protection under the Fair Labor Standards Act or the National Labor Relations Act. Additionally, players kneeling for religious reasons would be protected because there could be Title VII implications. But, because neither of those scenarios is applicable here, the players’ contracts are really their only form of protection, and it may be a weak one for the reasons explored above.

Interestingly, the NBA has an official rule that requires players, coaches, and trainers to  “stand and line up in a dignified posture… during the playing of the National Anthem.” Maybe the NFL will implement a similar rule, but, as of now, many remain unsure as to how the NFL will react. NFL owners have not demonstrated much interest in firing their players for kneeling during the national anthem; firing players would probably generate an even bigger protest and lead to further division among Americans. It seems that now more and more players are kneeling to protest in defiance of President Trump.

In conclusion, the fate of the careers of NFL players who kneel in protest is dependent on their contracts with the NFL. U.S. law does not punish those who choose to not participate in our national anthem and probably could never do so because that would be against our democratic principles.

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