Free speech isn\u2019t free \u2013 and that\u2019s certainly true in the workplace. \u00a0That is one of the most tested aphorisms in our great nation\u2019s history. \u00a0 The NFL is on the brink of a very precarious legal and public relations issue, which can be summarized thus: \u00a0There are NFL players making political statements while in uniform, while on the job, while the protest can be seen by millions of NFL viewers through channels paid for by NFL advertisers. \u00a0The NFL is a massive business that stands to lose a lot of dollars very quickly if fans or advertisers turn on the League.<\/p>\n
What are the legal ramifications of an NFL player like Colin Kaepernick sitting rather than standing during the pregame playing of the National Anthem?<\/p>\n
There are multiple threads that run through this issue. \u00a0Can we ensure freedom of speech if the protesting players are shouted down by the NFL fans? \u00a0Can the League navigate this very thorny issue while looking sympathetic to both players and fans? \u00a0Can the League keep the media outlets and advertisers happy? \u00a0Those threads are to be explored in other posts.<\/p>\n
The short answer is that the NFL and the teams can in fact mandate\u00a0exactly<\/em>\u00a0what the players do during the National Anthem, provided that the Collective Bargaining Agreement between the players and teams allows it. \u00a0More detail as to why follows. \u00a0However, and this often happens,\u00a0 the legal answer about what\u00a0can<\/em>happen and the practical answer about what\u00a0should<\/em>\u00a0happen aren\u2019t always the same.<\/p>\n The federal laws that ensure protection from workplace discrimination aren\u2019t absolute. \u00a0 Title VII of the Civil Rights Act of 1964, along with a few other statutes, \u00a0prohibit workplace discrimination in\u00a0limited<\/em>\u00a0circumstances. \u00a0In a very broadly stated summary, employers may not take adverse employment action (termination, suspension, or adverse treatment of employees) when the adverse employment action is motivated by the employee\u2019s:<\/p>\n This issue is often tested by the scenario in which an employee is professing a political viewpoint in the workplace. \u00a0Political viewpoints are not protected by federal (or by Pennsylvania) anti-discimination laws. \u00a0Thus, an employer can direct an employee to stop electioneering in the office.<\/p>\n Employment Contract Considerations.<\/em>\u00a0 The employment relationship between the players and the teams is governed by written contracts: the player\u2019s individual contract with the team and the collective bargaining agreement between the players\u2019 union and the team owners. \u00a0As long as those contracts do not have any provision that violates federal or state employment law, the terms of the contracts are controlling. \u00a0The teams\u2019 first point of review should the employment contracts.<\/p>\n Is it a Civil Rights Issue?<\/em>\u00a0 \u00a0No, it is not. \u00a0A civil rights claim under Section 1983 on behalf of the players would only arise here if their employer was the federal government, or a state or local government entity. \u00a0The NFL\u2019s a big business, but it\u2019s not that big. \u00a0I think some of the lesser lights in the media (and there are many) are conflating these issues. \u00a0No one\u2019s civil rights are violated if an NFL team tells a player to stand up, or lock arms with his teammates, or anything else that NFL players are directed to do during work time.<\/p>\n NFL head coaches, and by association the NFL executive leadership, have to figure out how to respond in a comprehensive way. \u00a0Does the coach or team ownership (i.e the boss) dictate to the players what actions they may engage in during an NFL game? \u00a0Seems like coaches in fact do that very thing in all facets of an athlete\u2019s performance on the field. \u00a0Is this different because of the political aspects? \u00a0Legally, I say no. \u00a0From a public relations standpoint, however, the answer is different: the teams here have to thread the needle with a response that accommodates the players and protects the image of the club and the NFL.<\/p>\n<\/div>\n Bryan Tuk is the owner of the Tuk Law Offices based in Allentown. Bryan\u2019s practice is focused on small businesses, nonprofit organizations and arts organizations. You can reach Bryan by email at <\/em>bryan@tuklaw.com<\/u><\/a>, or follow Bryan on Twitter<\/a> and FaceBook <\/a>@TukLawOffices.<\/em><\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n\n
Click here for more articles by Bryan Tuk<\/a><\/h3>\n
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