Fired for Kneeling? Not So Fast

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By Jaclyn Diaz and Jacquie Lee

Can a professional football player be fired for kneeling during the national anthem? President Donald Trump may wish it were so, but it’s not clear a team could do that under the union contract that sets employment terms for NFL athletes.

Players are subject to disciplinary action if they engage “in personal conduct reasonably judged by Club to adversely affect or reflect on Club,” the collective bargaining agreement between the NFL and the National Football League Players Association says.

But the league and individual team owners and management so far have been supportive of players who participate in the pre-game protests. That suggests it will be difficult to penalize players in the future for political activity, attorney Len Schiro told Bloomberg BNA.

By not disciplining players over political protests such as kneeling during the national anthem, teams have created a “binding past practice,” said Schiro, a law professor at Rutgers University with a focus on professional sports. If a team disciplines a player for kneeling, the NFL Players Association “could cite other examples of guys doing this and not getting punished,” he told Bloomberg BNA Sept. 25.

The growing national trend of athletes protesting during the national anthem led Trump to criticize the practice in a Sept. 22 speech and on Twitter over the weekend. He called on NFL team owners to fire players who protest during the singing of “The Star Spangled Banner.”

The National Football League doesn’t anticipate changing its policy, a spokesman told Bloomberg BNA. “Players are strongly encouraged, but not required, to stand during the national anthem,” the spokesman said.

The NFL has not taken disciplinary action against any player for kneeling during the national anthem. The Players Association has also publicly supported athletes’ ability to express themselves politically.

Easy to Draw Foul in NBA

Not all sports leagues play by the same rules when it comes to pre-game procedures, Dave Pepe told Bloomberg BNA. Pepe is a sports agent who represents Major League Baseball players.

While the MLB and NFL contracts have similarly broad language, the National Basketball Association has strict rules on conduct displayed during the national anthem, Pepe said Sept. 25.

“Players, coaches and trainers are to stand and line up in a dignified posture along the sidelines or on the foul line during the playing of the National Anthem,” according to the NBA’s rulebook.

If these protests continue into the NBA season, which starts Oct. 17, and players take a knee during the anthem, the NBA may take a harder line against its athletes, Pepe said. The league would determine the punishment, if it chooses to enforce its rules. That could mean something as minimal as fines or as big as suspensions, he said.

The NBA has a record of punishing players for speaking out on civil rights issues.

Mahmoud Abdul-Rauf, who played point guard for the Denver Nuggets, was suspended and fined for refusing to stand during the national anthem in the 1996 season.

In July 2016, the WNBA fined three teams and some of their players for wearing T-shirts to raise awareness about police brutality. The New York Liberty, the Indiana Fever, and the Phoenix Mercury teams were fined $5,000 and each player was fined $500.

NBA players who wore similar shirts were not fined. The NBA, like other leagues, has strict guidelines related to uniforms.

The NBA did not respond to Bloomberg BNA’s request for comment.

Baseball Demands Loyalty

The MLB has a “loyalty clause” within its collection bargaining agreement that leaves open the door for discipline by the league, Pepe said.

“The Player agrees to perform his services hereunder diligently and faithfully, to keep himself in first-class physical condition and to obey the Club’s training rules, and pledges himself to the American public and to the Club to conform to high standards of personal conduct, fair play and good sportsmanship,” the contract says.

“I think you can make the argument that if the club says, ‘We all have to stand,’ or you would be in violation of the uniform player’s contract,” Pepe said.

This issue hasn’t come up often in Pepe’s experience as an agent for baseball players. In many cases, some players are not on the field or even in the dugout during the anthem, he said.

Bruce Maxwell, a relief catcher with the Oakland Athletics, took a knee Sept. 24, the first baseball player to do so.

“Major League Baseball has a longstanding tradition of honoring our nation prior to the start of games,” the league said in a Sept. 24 statement. “We also respect that each of our players is an individual with his own background, perspectives and opinions. We believe that our game will continue to bring our fans, their communities and our players together.”

What Happens If a Player Is Punished?

If players want to contest a political-protest fine or suspension, they turn to the collective bargaining agreement to determine if there’s a remedy.

“There is a procedure based on what would happen if the league tries to suspend or fine a player for their exercise of rights,” Pepe said.

The procedures differ slightly but the general idea remains the same: Typically, there’s an internal review where the league renders a decision. If a player and his representatives are not happy with the results, they can appeal that internally, too. If that review gets denied, a player can file a grievance, which generally goes to arbitration, Pepe said.

However these demonstrations end, Pepe said it’s unlikely that sports figures will stop using their celebrity to promote issues important to them.

“I don’t think that would ever change, and it shouldn’t. It’s up to the general public to draw their own opinion to whether they approve or don’t approve,” Pepe said. “Buy a ticket or don’t buy a ticket.”

To contact the reporters on this story: Jaclyn Diaz at jDiaz@bna.com; Jacquie Lee at jlee1@bna.com

To contact the editor responsible for this story: Peggy Aulino at maulino@bna.com

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