• Will the NFL Terminate Players Who Kneel During the Anthem?
  • October 18, 2017 | Author: Joseph M. Hanna
  • Law Firm: Goldberg Segalla LLP - Chicago Office
  • Experts have suggested NFL players who kneel during the anthem are unlikely to be terminated. And so far, no players have been. A few weeks ago, President Trump suggested players who do kneel during the anthem should be terminated. Reactions to President Trump’s comments were varied and some time later, many players have continued to kneel or lock arms with other teammates in a showing of solidarity.

    The reason the NFL or its teams have taken no action could be purely legal. Players are employees and are protected by a wide variety of legal safeguards for workers. A team simply can’t fire a player. They have to consider how federal, state, and local law governs the termination of a player. They also need to consider players contracts and the collective bargaining agreement (CBA). The legal aspect of the termination process and the legal repercussions to the NFL is more complex than the fans may think.

    Some states have law that restricts employers from terminating employees based on their political views. However, the NFL is a private organization. When the NFL acts, it is not “state action.” Thus, the First Amendment doesn’t give players a protected right to speech or protest, like it would for a government or state employee. The NFL and its teams have the authority to punish players when they are not protected by state or federal law.

    Additionally, NFL players sign contracts. Their contracts restrict the league and dictate players be terminated for only such reasons listed therein. Whether or not kneeling for the anthem is one of these reasons has yet to be determined. While contracts vary, the NFL and its teams are allowed to terminate a player if the player participates in behavior that negatively impacts the team or reflects poorly on the team.

    The CBA allows the league to punish players who violate the NFL’s rules. One part of the CBA restricts players from participating in behavior that is “detrimental to the integrity of and public confidence in” the NFL. This language is ambiguous and leaves the NFL and its teams a lot of space to determine what this conduct would be. If the league feels kneeling during the anthem is conduct “detrimental” to the league or the way the public views the league, then it has every right under contract to take action in punishing the players. However, the league may have a player revolt on its hands if it chooses to do so.

    Moreover, some owners support their players’ choice. In the cases where owners have joined the players in protest, it would be nearly impossible for the team to terminate a player based on the anthem protest. If players were to go further, speak out more, or wear political attire, then it’s more likely the league or its teams would start to dole out punishment.