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By Jaclyn Diaz
The National Football League’s new ban on players kneeling during the national anthem is getting a heated response from the public and the players’ union.
And because teams, not players, are cited for infractions, the athletes might have little recourse to complain about it.
“This policy is quite cleverly crafted to try to avoid any recourse by the union,” Rebecca Givan, an associate professor in the School of Management and Labor Relations at Rutgers University, told Bloomberg Law May 24.
The NFL Players Association says it wasn’t consulted on the policy change and that it will challenge any aspects of the new rule that are “inconsistent with the collective bargaining agreement.”
The NFL couldn’t be reached for a comment, and the NFLPA declined to comment further than its statement.
Colin Kaepernick, the former quarterback for the San Francisco 49ers, triggered the debate during the 2016 season. He began kneeling during the pregame playing of the anthem as a form of social protest against racial injustice and police brutality.
The practice became a source of much controversy after other players joined in. Even President Donald Trump has since said players who don’t stand should be fired or should leave the country.
The NFL told Bloomberg Law in September that it didn’t anticipate changing its policy. “Players are strongly encouraged, but not required, to stand during the national anthem,” a spokesman said at the time.
That changed on May 23, when NFL Commissioner Roger Goodell announced a revision of its Game Operations Manual to include fines for teams whose “personnel are on the field and do not stand and show respect for the flag and the Anthem.”
“The policy cleverly tries to avoid any recourse by mediating punishment to teams rather than to players,” Givan said. “It’s more difficult to argue players were directly harmed or punished as a result of violating this policy.”
The fact that the NFL changed the Game Operations Manual and not the collective bargaining agreement could also be a roadblock for claims filed by the union.
“Employers have rights to change rules if it’s not expressly written in the contract,” attorney Leonard Schiro said. Schiro focuses on labor relations in professional sports.
In general, most things not covered explicitly in a union contract fall under what’s known as management rights, Givan said. That means employers have more power to implement a policy they desire outside of the collective bargaining agreement.
Players could file a grievance if they are incorrectly punished under terms of the collective bargaining agreement with the NFL, but it’s not clear whether they will be able to make that case here, Givan said.
Not only that, the collective bargaining agreement states that the commissioner can act at his discretion to discipline players whose conduct is deemed “detrimental to the integrity of, or public confidence in, the game of professional football,” Schiro said.
“That’s a pretty big catchall. All they have to say is under this agreement we have power to expand rules to protect the integrity of the game,” he said.
The NFLPA is in a tough spot and is likely treading carefully for now, Givan and Schiro said.
“The union’s in a difficult position because it’s not clear that this issue is bargainable at all. If players want to fight back it’s probably going to need to be in the form of bigger collective action” rather than with grievances, Givan said.
So far the union hasn’t come out strongly against this policy while some players have, Schiro says.
“The players’ response versus the union’s is inconsistent,” he said. “It’s probably because the union recognizes a few things that could have a detrimental economic effect on contracts.”
The union has to represent the professional players as well as star quarterbacks. The union has to pick its fight and do so carefully to not hurt not-as-wealthy players. Those players may only get a few years to play in the league and get paid the minimum salary. For a rookie in his first year, he’d likely receive between $400,000 to $500,000.
If the league loses money and viewers, as some have claimed because of the kneeling protests, contracts could fall apart, Schiro said. And what happens to the union’s power then?
There have been claims from players and the public responding to the NFL’s policy change that this move is a First Amendment violation. That doesn’t fly here, Ruben Garcia, the co-director of the University of Nevada, Las Vegas’ Workplace Law Program, said. The NFL and its owners are not a government entity, so free speech rights don’t apply.
“I think it is more of a labor issue, a very interesting one in terms of what they are required to bargain over,” he said.
Generally speaking, free speech doesn’t exist in the private workplace, anyway, Givan said. And that counts when the workplace is a football field.
“This is a reminder that American workers, even NFL players, don’t have free speech rights on the job,” she said.
The NFL is not the only sports franchise with this sort of policy. The National Basketball Association has strict rules on conduct during the national anthem.
“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.
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