The NFL vs. The NFLPA: New National Anthem Policy Deepens Divide, Prolongs Controversy

Commissioner Roger Goodell and the NFL may believe the league's national anthem controversy is put to bed entering the 2018 season, but after Wednesday's polarizing announcement, it's far from over.

THIS STORY HAS BEEN REPUBLISHED WITH THE BELOW UPDATE.

On Tuesday, July 10, the NFLPA filed a non-injury grievance on behalf of all players against the NFL, challenging the NFL’s recently imposed anthem policy. Below is my SI article from May 23 outlining the key legal arguments for this grievance. The article examines the relevant areas of the NFL collective bargaining agreement that a neutral arbitrator will review in assessing the NFLPA’s grievance, and also details how players could pursue other kinds of legal claims—including claims that invoke the Sherman Antitrust Act, the National Labor Relations Act, Title VII of the Civil Rights Act of 1964 and accompanying remedies under state law—in attempting to contest the new anthem policy. Those other types of claims would be raised in separate legal actions, including litigation. To put it mildly, the anthem legal controversy could grow, involve multiple federal agencies and courts and become quite complex.

Had the NFL negotiated the new policy with the NFLPA instead of unilaterally imposing it, no such legal challenge would have been brought today. It is possible the NFL will now work collaboratively with the NFLPA on potential changes to the policy. If the two sides fail to find a resolution, the NFL would be rolling the dice that a neutral arbitrator would see the anthem issue the NFL’s way. Along those lines, in a statement on Tuesday, the NFLPA noted that it has proposed “confidential discussions” with the NFL. Such discussions could lead the two sides to finding an amicable solution. Such a solution would halt the NFLPA from proceeding with a grievance and, potentially, litigation. The NFLPA’s statement indicates the NFL has agreed to such discussions. We’ll see how those discussions turn out.

While the NFL anthem controversy has often been debated in the context of free speech, the First Amendment is unlikely to apply. The First Amendment protects our right to speak freely without the repercussions of government sanction. The First Amendment does not protect us from adverse employment actions by private businesses. Here, the proposed sanction is by a private employer, the NFL or an NFL team. As detailed below, the more relevant areas of law are those sounding in contract law, labor law, antitrust law and civil rights law.

It is true that many NFL stadiums have received enormously valuable subsidies from the government and taxpayers. These subsidies, however, are unlikely to convert the NFL or NFL teams into branches of the government for purposes of the First Amendment. The league and its teams are still private entities. There is one exception: the publicly owned Green Bay Packers. However, the government doesn’t own the Packers—the people do.

Some have linked President Donald Trump’s frequent criticisms of NFL players, including Colin Kaepernick and members of the Philadelphia Eagles, and as well as Trump’s rebuke of the NFL and commissioner Roger Goodell as relevant in the anthem legal analysis. Those critiques are indeed relevant, though probably not for purposes of the First Amendment. Trump has his own First Amendment right to speak about issues of interest to him. Also, while some have theorized that 18 U.S. Code § 227, which prohibits the President from “wrongfully influencing a private entity’s employment decisions” could apply to Trump’s remarks about the NFL, it most likely doesn’t apply since it requires “intent to influence, solely on the basis of partisan political affiliation.” If only 1% of Trump’s motivation was not about partisan political affiliation then the law doesn’t apply.

That said, Kaepernick’s collusion grievance relies heavily on the idea that Trump’s inherent powers as President and his use of Twitter to criticize specific people and companies have pressured NFL owners into keeping Kaepernick out of the NFL. It remains to be seen if sufficient evidence support’s Kaepernick’s theory.

Speaking of Kaepernick, the willingness of the Arizona Cardinals to feature on Twitter and their official team website praise by team president Michael Bidwill of his former Georgetown Prep classmate and football teammate, U.S. Supreme Court nominee and U.S. Court of Appeals for the D.C. Circuit Judge Brett Kavanaugh, strikes some as hypocritical given that the NFL discourages players from engaging in protest during the anthem. It is unlikely Bidwill’s comments will play any role in the legal process. As explained below, whether NFL players have a meritorious grievance against the NFL over the anthem is a matter of interpretation of the CBA and, potentially, interpretation of applications of labor law, antitrust law and civil rights law. Also, public praise during the offseason of a judicial nominee is in some ways factually distinct from a pregame protest; if Bidwill had spoken to the stadium about Kavanaugh before a game, it would seem like a more analogous situation.

NFL commissioner Roger Goodell on Wednesday announced a new national anthem policy for teams and players. Notably, the new policy removes the existing requirement that players be on the field during the playing of the national anthem. At the same time, the policy adds a requirement that players who are on the field must stand. The policy also authorizes the NFL to fine teams whose players violate this policy. Further, the policy empowers each team to adopt its own workplace rules consistent with the spirit of the league’s policy.

In other words, while the NFL will continue to not directly punish players who kneel, the league could punish the teams who employ those players. Teams are also now authorized by the league to punish kneeling players by fines and possibly suspensions, too. Given that teams want to avoid being punished by the NFL, teams are now presumably less inclined to sign players who would protest. In that respect, the league has adopted a policy that allows it to indirectly punish protesting players while also allowing teams to directly punish them. As a counter-point, New York Jets chairman Christopher Johnson said on Wednesday that he will pay any NFL fines that result from player protests. Johnson reasons that he “never” wants restrictions on player speech and expression. Other owners, however, no doubt feel quite differently.

NFL's National Anthem Policy Ignores the Original Reason for Protests: Social Justice

The league hopes that the new anthem policy will calm the ongoing controversy concerning NFL players who kneel. This controversy began in 2016, when San Francisco 49ers quarterback Colin Kaepernick began kneeling as a means of expressing his concerns about racial inequalities and the treatment of minorities by law enforcement. Other players soon followed, and their actions—and the lack of accompanying punishment—attracted the praise of some constituencies and scorn of others, including some fans and sponsors and, most influentially, President Donald Trump. Kaepernick and his former teammate, Eric Reid, have filed separate collusion grievances (for more, see SI legal coverage of Kaepernick’s grievance and Reid’s grievance). Meanwhile, the NFLPA has filed its own non-injury grievance on behalf of Reid. Attorneys for Kaepernick have deposed approximately 15 NFL owners and, as revealed by MMQB last Friday, New England Patriots owner and Trump friend Robert Kraft is among them.

According to the NFL, the new anthem policy received a supportive vote by all of the team owners who were eligible to vote and who chose to participate in the vote (at least one eligible owner, Jed York of the San Francisco 49ers, has told media he abstained from voting). More importantly, however, the new policy was not negotiated with the National Football Players’ Association. In a tweet, the NFLPA expressed frustration to the manner in which the NFL went about this policymaking. The NFLPA asserts that it will “review” the new policy and challenge any provisions that it deems to violate the collective bargaining agreement.

As explained below, the unilateral manner in which the policy has come into effect could raise a host of legal problems for the NFL. It could also prolong the lifeline of the NFL anthem controversy for years to come.

The NFL unilaterally changing a workplace rule could bring on an antitrust lawsuit

Goodell’s statement indicates several changes that will need to be expressed in writing. They include: (1) players who choose to be on the field prior to games must stand during the anthem; (2) the NFL can punish teams whose players “are on the field and do not stand and show respect for the flag and the anthem” and (3) teams can “develop” their own rules to punish offending players. These changes will not appear as amendments to the collective bargaining agreement because they were not collectively bargained. For that reason, and because these changes impact a unionized workforce, they will be much more susceptible to legal challenge.

Goodell’s statement on Wednesday referenced the “game operations manual” as a document that will be altered in order to incorporate some of these changes. The manual is authored by the league and is not reviewed by the NFLPA. Put another way, the manual is not part of the CBA.

The fact that the manual isn’t negotiated with the NFLPA isn’t all that surprising. The manual is designed mainly to assist teams in how they collaborate on game operations. It also intends to ensure that teams treat operations in similar or identical ways. For instance, the manual specifies rules for the chain of custody of footballs before games. It also compels teams to make certain resources available to visiting players, including a safe and comfortable locker room.

The manual also contains a national anthem policy. The policy currently states that the anthem “must be played prior to every NFL game, and all players must be on the sideline for the National Anthem.” The policy further mentions that players “should” stand. There is no explicit requirement that players must stand. Expect the league to change the language so that it reads something to the effect of the anthem “must be played prior to every NFL game, and all players who are on the field must stand for the National Anthem.”

This modest alteration to the language would accomplish Goodell’s desire to remove the requirement that players appear on the sideline for the anthem. However, it would add a condition that those players who are on the sideline must stand. The policy already contains language that the NFL can impose team punishments for failure to adhere to the policy. Such language could be preserved after any revisions.

Jets Chairman Christopher Johnson Will Pay Players' Fines for Anthem Protests

Sounds pretty simple, right? Not so fast.

Players could argue that such a change will impact their wages, hours and other conditions of employment. To that end, a player could insist that while the new policy does not lead to direct league punishments of players, it nonetheless adversely affects the employment of players who do protest in ways that violate the new policy.

As noted above, teams that sign and keep protesting players will face league discipline. Those teams are thus are less inclined to sign and keep such players. Along those lines, players could cite how Kaepernick and Reid have been shut out of opportunities to play for teams in a dynamic where teams aren’t punished by the league—add to that dynamic the capacity for the NFL to punish teams with protesting players and alienation of protesting players seems even more likely to occur.

This dynamic has potential legal significance, too: in union-management settings, workplace rules that have not been collectively bargained and that impact wages, hours and other working conditions can be challenged under federal antitrust law. Specifically, Section 1 of the Sherman Antitrust Act prohibits restraints that competing businesses (NFL clubs) conspire to adopt and that harm competition more than they help.

Players would depict a policy that overtly deters teams from signing quality players—like Kaepernick and Reid—is one that denies fans of being able to watch better players than those that are signed to play the same positions. Arguably, then, the policy diminishes the league product.

In response, the league and teams would stress that players can clearly protest the anthem under this policy—they just can’t protest on the field and thus not in ways that carry the same public notice and symbolism. The league would also emphasize that there are many quality players who remain unsigned by teams and who never engaged in anthem protesting.

The power of teams to punish players is hardly straightforward

Players could also raise objections to teams that now punish them for anthem protests. Under what legal authority, players might ask, did teams obtain this power?

In response, a team could cite the standard player contract, which every player must sign and which is covered by the CBA. The contract contains a clause that obligates a player 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.” Still, another clause empowers teams to cut players whose “personal conduct [is] reasonably judged by club to adversely affect or reflect on club.”

In addition, Article 42 of the CBA authorizes teams to impose a suspension of up to four games, or a fine of up to four weeks pay, for “conduct detrimental to club.” Article 42 also features a penalty schedule for specific infractions, meaning infractions that are expressly defined to not fall under the general “conduct detrimental to club” moniker. A team, for example, can’t fine a player more than $665 for each pound he is overweight. This weight clause penalty reflects collective bargaining: since it is in the CBA, it means the NFLPA agreed to it. Article 42, however, does not contemplate a penalty for the national anthem. For that reason, a team could invoke the general “conduct detrimental” language and assert it has the right to suspend a player up to four games.

If a team intends to punish players for not partaking in the anthem, it ought to be mindful of Article 42’s requirement that teams publish a complete list of disciplinary actions at the start of preseason training camp. If the team fails to do so and simply relies on the general “conduct detrimental” clause, a player would likely gain a stronger argument to challenge the punishment.

The NFLPA and players have different options to legally challenge team punishments

The initial way a player could challenge a team punishment for protesting would be through Article 43 of the CBA. Article 43 contemplates non-injury contract disputes between teams and players. A player could invoke Article 43 to contend that a punishment for protesting is simply not contemplated by either the CBA or the standard player contract.

The NFLPA would supplement this argument by highlighting Article 2 of the CBA. Article 2 expresses that provisions of the CBA supersede terms and conditions found in unilaterally imposed NFL contracts—including the game operations manual and any team workplace rules. Given the absence of language about the anthem in the CBA or the player contract, the NFLPA would assert that teams have violated Article 2 by imposing new workplace rules outside the scope of collectively bargained contracts.

In response, the team would insist that while protesting the anthem isn’t expressly mentioned in the CBA, it falls under the collectively bargained category of “conduct detrimental.” Arguably, such behavior also constitutes conduct that violates the standard player contract.

A neutral arbitrator would oversee the grievance, which would likely take months and involve the sharing of evidence and the taking of depositions. The party that loses the grievance could challenge the result in federal court. However, federal judges are obligated to provide high deference to arbitrators’ awards (rulings). In reality, the arbitrator’s award would most likely be the final say on the grievance.

The NFPLA and punished players could also turn to the National Labor Relations Board and assert that a team punishing a protesting player violates Section 7 of the National Labor Relations Act. The core argument would be that players who engage in protest are engaged in an activity that advances the union’s interests, including those related to player speech, and that disrupting such activity constitutes an unfair labor practice. The team would attempt to refute such a claim by insisting that there has been no change to any player's employment—players can still protest off the field—and that each player protest is different and reflective of individualized motivations. Some players are protesting inequality, others are protesting Trump and still others are protesting opposition to their teammates who protest. From that lens, player protests would not constitute collective activity by a union but instead individual choices.

Chris Long on NFL Owners' Vote on National Anthem: 'This is Not Patriotism'

Alternatively, a player who falls into a protected demographic category such as race could file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). He might contend that his protest concerns racial discrimination and that punishment for it constitutes its own form of racial discrimination. To that end, he would assert that the team has violated Title VII of the Civil Rights Act of 1964. The team would try to reject such a theory and maintain that anthem protests damage the business interests of the team. Along those lines, the team would contend that any punishments for anthem protests are unrelated to the player’s race.

As still another legal option—and one that would be raised after the grievance process—a punished player could file a lawsuit in federal or state court against the team that punished him. Depending on the circumstances, he might argue workplace discrimination or defamation. In response, the team would assert that his punishment has nothing to do with discrimination or defamation but business judgment by the team.

Impact of new anthem policy on Kaepernick and Reid collusion grievances

On the surface, the new anthem policy has nothing to do with Kaepernick or Reid’s collusion grievances. Their grievances stem from an anthem policy—or lack of policy— that previously existed and how teams interacted with Kaepernick and Reid as that policy existed.

Beneath the surface, however, the new policy could be very related to Kaepernick and Reid’s grievances. Watch for attorneys for Kaepernick and Reid to argue that the NFL’s new anthem policy expressly codifies what was already implied. It’s been shown (per Mike Florio) that teams have viewed Kaepernick as a starting quarterback and yet he can’t get an interview with a team, let alone an offer. Reid, a starting quality safety, appears similarly situated: he had one team visit, with the Cincinnati Bengals, and Bengals owner Mike Brown reportedly expressed discontent to Reid about his protesting. Reid left the team without an offer. The players’ attorneys will be inclined to argue that this new policy confirms that owners are indeed inclined to talk to each other about the anthem and, perhaps due to fear of retribution by Trump, to not sign players who protest the anthem.

Those attorneys are also likely to stress the timing of Goodell’s announcement. It follows Kaepernick’s attorneys, Mark Geragos and Ben Meiselas, conducting weeks of depositions with 15 owners of NFL teams. Did those owners talk to each other about their depositions prior to meeting up this week? If they did, did any of their conversations touch on whether those teams would sign Kaepernick or Reid? Will other protesting players who are without jobs and who now see owners vote in a new anthem rule, file their own grievances? Will teams unwittingly create new opportunities for player collusion grievances if they talk to each other about individual team policies on punishing players over anthem protests?

Answers to these questions remain unknown and will only be answered in time. One thing is certain, however: if the NFL believes its new anthem policy will end the anthem controversy, they couldn’t be more mistaken.

Michael McCann is SI’s legal analyst. He is also the Associate Dean for Academic Affairs at the University of New Hampshire School of Law and co-author with Ed O'Bannon of the new book Court Justice: The Inside Story of My Battle Against the NCAA.