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  #1  
Old 05-23-2018, 03:38 PM
John Mace John Mace is offline
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NFL: Stand for the anthem or stay in the locker room.

The NFL announced that teams will be fined if players do not stand for the National Anthem. Players not wishing to stand are allowed to stay the locker room, but not on the field.

I don't know if this is constitutional, but would be interested in what our resident lawyers have to say. It's not the government making the call, but companies can't just make employees do anything they wish.

I think I understand why they are doing this (it was supposedly a unanimous decision by the owners), because they think they will get more revenue, but I'm somewhat conflicted. The teams area a business and a business should have reasonable say about how it presents itself to its customers. But it's really only an "issue" because the news media chooses to dwell on it. It does not bother me in the least if players choose to stand or not.

So I guess I'd say "maybe good for business but not good social policy".

Last edited by John Mace; 05-23-2018 at 03:39 PM.
  #2  
Old 05-23-2018, 03:42 PM
ISiddiqui ISiddiqui is online now
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Quote:
Originally Posted by John Mace View Post
I don't know if this is constitutional, but would be interested in what our resident lawyers have to say. It's not the government making the call, but companies can't just make employees do anything they wish.
I mean companies can't make employees do certain things that violate laws or whatnot, but there is no requirement that they allow for protests at work. There is no reason that this policy would violate the constitution.

And I am a supporter of the protesting players.

Last edited by ISiddiqui; 05-23-2018 at 03:42 PM.
  #3  
Old 05-23-2018, 03:57 PM
John Mace John Mace is offline
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Originally Posted by ISiddiqui View Post
I mean companies can't make employees do certain things that violate laws or whatnot, but there is no requirement that they allow for protests at work. There is no reason that this policy would violate the constitution.

And I am a supporter of the protesting players.
I'm cautious about taking such a black and white stand on this sort of thing. I could be wrong, as I'm not familiar with all the 1st amendment case law, but I'd be surprised if employers can disallow any and all political activity at work. I suspect it's a matter of where you draw the line.
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Old 05-23-2018, 04:05 PM
ISiddiqui ISiddiqui is online now
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I'd be surprised if employers can disallow any and all political activity at work.
Why?

The First Amendment only applies to the Government. Now there are anti-discrimination statutes, but those don't defend taking political stances.

https://corporate.findlaw.com/law-li...revisited.html
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Old 05-23-2018, 04:05 PM
Skywatcher Skywatcher is offline
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I'd like to see the players go on strike by refusing to leave the locker rooms at all until the NFL comes to their senses.
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Old 05-23-2018, 04:10 PM
John Mace John Mace is offline
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Originally Posted by ISiddiqui View Post
Why?

The First Amendment only applies to the Government. Now there are anti-discrimination statutes, but those don't defend taking political stances.

https://corporate.findlaw.com/law-li...revisited.html
Standing for the anthem might be considered compelled speech. Employers don't have an unlimited right to compel employee speech.
  #7  
Old 05-23-2018, 04:11 PM
begbert2 begbert2 is online now
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IANAL, but I imagine what the orders the NFL can give, and what actions they can take if the orders are not obeyed, are laid out in the player's contract.

If we don't consider the contract, my vague understanding of the law is that then the nature of at-will employment allows the NFL to demand damn near any behavior with the option to fire anyone who disobeys - unless asking them to carry out that behavior is illegal. Similarly there are various ways the players can be disciplined for noncompliance with company policy -

- if their contracts allow.
  #8  
Old 05-23-2018, 04:12 PM
silenus silenus is online now
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Standing for the anthem might be considered compelled speech. Employers don't have an unlimited right to compel employee speech.
Which is why they gave the players the option of remaining in the locker room during the anthem.

It's still a stupid response to a problem that they made matter.
  #9  
Old 05-23-2018, 04:14 PM
John Mace John Mace is offline
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Originally Posted by begbert2 View Post
IANAL, but I imagine what the orders the NFL can give, and what actions they can take if the orders are not obeyed, are laid out in the player's contract.

If we don't consider the contract, my vague understanding of the law is that then the nature of at-will employment allows the NFL to demand damn near any behavior with the option to fire anyone who disobeys - unless asking them to carry out that behavior is illegal. Similarly there are various ways the players can be disciplined for noncompliance with company policy -

- if their contracts allow.
Can the NFL compel players to wear MAGA hats? There is nothing illegal about wearing such a hat.

Quote:
Originally Posted by silenus
Which is why they gave the players the option of remaining in the locker room during the anthem.
Separate but equal? Punishment for holding different political views, and refusing to participate in compelled political speech?

N.B.: I'm not certain of any of this stuff. I'm just trying to be humble about what I know for sure and what I don't know for sure. I'd love for one of our legal experts to weigh in.

Last edited by John Mace; 05-23-2018 at 04:18 PM.
  #10  
Old 05-23-2018, 04:17 PM
silenus silenus is online now
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IANAL, but I imagine what the orders the NFL can give, and what actions they can take if the orders are not obeyed, are laid out in the player's contract.
And in the agreements with the Player's Union. That's where the protections are for the players.
  #11  
Old 05-23-2018, 04:22 PM
D'Anconia D'Anconia is online now
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They're not fining the players, they are fining the teams.
  #12  
Old 05-23-2018, 04:22 PM
Snowboarder Bo Snowboarder Bo is online now
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I predict a lot more players staying in the locker room until the anthem is over.
  #13  
Old 05-23-2018, 04:27 PM
John Mace John Mace is offline
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Originally Posted by D'Anconia View Post
They're not fining the players, they are fining the teams.
From the USA Today article on this subject:

Quote:
Also under the revision, each franchise will have the power to issue their own policies, which could include fines for players protesting the anthem, under the conduct detrimental provision of the league’s personal conduct policy.
What if the players stand, but turn around? What if they cover their eyes with their hands? I think this is a losing proposition for the owners.
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Old 05-23-2018, 04:27 PM
jsc1953 jsc1953 is offline
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The NFL could have made this easy by keeping all players in the locker room until after the anthem. They do that in college; and as I understand it they did it in the NFL until recently. And somehow, the Republic survived.
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Old 05-23-2018, 04:28 PM
Little Nemo Little Nemo is offline
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The problem, as is so often the case nowadays, is Trump decided to get involved with it. He made public statements threatening possible government sanctions if the NFL didn't do something to stop player protests he didn't like.

So protesting players can make the argument that this wasn't really a decision made by the team owners; they can argue the decision was the result of government coercion. And that makes this a constitutional issue.

Would the protesting players win such a lawsuit? I don't know. But they would have enough grounds to get a court hearing, which means they can have access to another forum for their protest. (Although they might not be allowed to sue. The Supreme Court this week ruled that employers can prohibit employees from suing their employer.)
  #16  
Old 05-23-2018, 04:29 PM
Tom Tildrum Tom Tildrum is offline
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Can the NFL compel players to wear MAGA hats?
It compels them to wear uniforms, right? And helmets with a particular logo?
  #17  
Old 05-23-2018, 04:29 PM
John Mace John Mace is offline
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The NFL could have made this easy by keeping all players in the locker room until after the anthem. They do that in college; and as I understand it they did it in the NFL until recently. And somehow, the Republic survived.
Or, just don't play the national anthem. But that would, of course, precipitate a snowstorm of protests to reinstate the ritual. Still, it's a crazy ritual-- it's a football game, not a patriots' rally.
  #18  
Old 05-23-2018, 04:29 PM
ISiddiqui ISiddiqui is online now
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Originally Posted by John Mace View Post
Standing for the anthem might be considered compelled speech. Employers don't have an unlimited right to compel employee speech.
How sure are you of this?

https://www.thenation.com/article/ho...-from-workers/
  #19  
Old 05-23-2018, 04:30 PM
Snowboarder Bo Snowboarder Bo is online now
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Employers can confine employees after they are off the clock for as long as the company deems necessary if the employer has a compelling interest, such as security. Why wouldn't they be able to institute this rule?
  #20  
Old 05-23-2018, 04:30 PM
John Mace John Mace is offline
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It compels them to wear uniforms, right? And helmets with a particular logo?
Those are not political in nature. Political speech is handled differently from commercial speech.
  #21  
Old 05-23-2018, 04:31 PM
hajario hajario is offline
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Many employers don’t allow political activities and solicitation and such in the workplace.
  #22  
Old 05-23-2018, 04:38 PM
John Mace John Mace is offline
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Quote:
Originally Posted by John Mace
Employers don't have an unlimited right to compel employee speech.
Quote:
Originally Posted by ISiddiqui View Post
Of this I am absolutely certain. Employers cannot, for example, compel employees to call all black people "niggers", or to chant "Jews will not replace us" on Yom Kippur (or any other time), or to salute each other with "Heil Hitler!".

Last edited by John Mace; 05-23-2018 at 04:38 PM.
  #23  
Old 05-23-2018, 04:39 PM
ISiddiqui ISiddiqui is online now
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Of this I am absolutely certain. Employers cannot, for example, compel employees to call all black people "niggers", or to chant "Jews will not replace us" on Yom Kippur (or any other time), or to salute each other with "Heil Hitler!".
Did you read the article?

The things you are stating in this post run afoul of anti-discrimination laws. Political parties/positions are not protected classes.

From the article:
Quote:
Hertel-Fernandez documented the ways in which corporate managers can tell workers to attend protests, write to members of Congress, and even donate to company political-action campaigns.

Last edited by ISiddiqui; 05-23-2018 at 04:41 PM.
  #24  
Old 05-23-2018, 04:47 PM
Tom Tildrum Tom Tildrum is offline
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Those are not political in nature. Political speech is handled differently from commercial speech.
I think that distinction is hard to support. What would you say is the likely legal outcome if a player tapes over the Redskins logo on his helmet because he considers it racist?

And the owners would say that standing for the anthem is commercial speech, not political.

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Or, just don't play the national anthem. But that would, of course, precipitate a snowstorm of protests to reinstate the ritual. Still, it's a crazy ritual-- it's a football game, not a patriots' rally.
Ultimately, this problem is structural; it has arisen because of the wide political gap between many of the players and many of the fans. That mismatch is going to continue to plague the NFL, and any solution the owners pursue is going to risk offense to one side of that gap or the other.

Saying that it's a football game and not a political rally cuts both ways. Opponents of the protests have been saying that all along to try to shut the players down.
  #25  
Old 05-23-2018, 04:51 PM
DavidwithanR DavidwithanR is offline
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The fact that some players are forced into something they oppose means those players are going to come up with a response. These guys have trained endlessly to be tough and to never back down - it's how they got where they are. The owners (and whoever is pressuring the owners) are going to end up looking like fools. (Which unfortunately appears to be accurate.)

Perhaps worse is the way in which forced compliance with patriotism makes all American patriots look weak and insecure. Needing to force compliance is an obvious sign of desperation.

Last edited by DavidwithanR; 05-23-2018 at 04:56 PM.
  #26  
Old 05-23-2018, 04:54 PM
D'Anconia D'Anconia is online now
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(Although they might not be allowed to sue. The Supreme Court this week ruled that employers can prohibit employees from suing their employer.)
That wasn't the ruling of the Court.
  #27  
Old 05-23-2018, 04:56 PM
John Mace John Mace is offline
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I think that distinction is hard to support. What would you say is the likely legal outcome if a player tapes over the Redskins logo on his helmet because he considers it racist?
I would say they have an uphill battle, because the name of the team is intrinsically tied into the team in a way that the national anthem is not. He would probably have to get the courts to rule that team name should be banned, which would be as difficult to do as getting the national anthem banned from the opening ceremony of the game.

Quote:
And the owners would say that standing for the anthem is commercial speech, not political.
They might well do that, but I don't see that as automatically being a successful argument.
  #28  
Old 05-23-2018, 04:59 PM
John Mace John Mace is offline
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The problem, as is so often the case nowadays, is Trump decided to get involved with it. He made public statements threatening possible government sanctions if the NFL didn't do something to stop player protests he didn't like.

So protesting players can make the argument that this wasn't really a decision made by the team owners; they can argue the decision was the result of government coercion. And that makes this a constitutional issue.

Would the protesting players win such a lawsuit? I don't know. But they would have enough grounds to get a court hearing, which means they can have access to another forum for their protest. (Although they might not be allowed to sue. The Supreme Court this week ruled that employers can prohibit employees from suing their employer.)
Emphasis added. The SCOTUS did not make that ruling this week or any other week.
  #29  
Old 05-23-2018, 05:03 PM
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Someone on Reddit pointed out that if this policy was to make the controversy go away, it has a lot of potential to do the exact opposite, by highlighting those who decide to defy it.

I look forward to groups demanding more out of the NFL after that, like a public statement of support for the armed forces and the president. I get giddy thinking of the dilemma.
  #30  
Old 05-23-2018, 05:10 PM
Bricker Bricker is offline
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(Although they might not be allowed to sue. The Supreme Court this week ruled that employers can prohibit employees from suing their employer.)
The Supreme Court ruled that federal law permits employers to use use arbitration clauses in employment contracts to prevent class action lawsuits. That's one kind of "suing your employer," I suppose, but their ruling doesn't generically prohibit employees suing employers.

Do you believe that the Court's ruling in Epic Systems Corp. v. Lewis has relevance to the NFL issue under discussion here? Can you explain specifically why it does, if you do?
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  #31  
Old 05-23-2018, 05:11 PM
Velocity Velocity is online now
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Someone on Reddit pointed out that if this policy was to make the controversy go away, it has a lot of potential to do the exact opposite, by highlighting those who decide to defy it.
In the news, maybe, but not as visibly as kneeling, because a player who is in the locker room is out of public eye whereas someone who kneels in front of a TV audience of millions is being seen by millions.
  #32  
Old 05-23-2018, 05:14 PM
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I wonder if some can claim a violation of freedom of religion, I know some refuse to honor anything but God.
  #33  
Old 05-23-2018, 05:18 PM
Gatopescado Gatopescado is online now
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Employers can confine employees after they are off the clock for as long as the company deems necessary if the employer has a compelling interest, such as security. Why wouldn't they be able to institute this rule?
Huh?
  #34  
Old 05-23-2018, 05:18 PM
begbert2 begbert2 is online now
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I wonder if some can claim a violation of freedom of religion, I know some refuse to honor anything but God.
That'd be kind of a hard sell if they haven't been refusing to participate all along.
  #35  
Old 05-23-2018, 05:22 PM
Chronos Chronos is offline
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The teams might have been able to make an argument of "no political speech during work hours", except that the whole kerfluffle arose because of some players refusing to engage in political speech during work hours, and their employers forcing them to. Standing for the anthem is itself a political statement.
  #36  
Old 05-23-2018, 05:31 PM
Tom Tildrum Tom Tildrum is offline
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I would say they have an uphill battle, because the name of the team is intrinsically tied into the team in a way that the national anthem is not.
So a team could rename itself "the Trumps" and make "MAGA" its logo, and compel the players to wear the slogan that way?
  #37  
Old 05-23-2018, 05:47 PM
enalzi enalzi is online now
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In the news, maybe, but not as visibly as kneeling, because a player who is in the locker room is out of public eye whereas someone who kneels in front of a TV audience of millions is being seen by millions.
Yes, but now if someone does decide to kneel, the team gets fined, and there's a million article about the team getting fined for someone kneeling.
  #38  
Old 05-23-2018, 05:47 PM
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The NFL announced that teams will be fined if players do not stand for the National Anthem. Players not wishing to stand are allowed to stay the locker room, but not on the field.

I don't know if this is constitutional, but would be interested in what our resident lawyers have to say. It's not the government making the call, but companies can't just make employees do anything they wish.

I think I understand why they are doing this (it was supposedly a unanimous decision by the owners), because they think they will get more revenue, but I'm somewhat conflicted. The teams area a business and a business should have reasonable say about how it presents itself to its customers. But it's really only an "issue" because the news media chooses to dwell on it. It does not bother me in the least if players choose to stand or not.

So I guess I'd say "maybe good for business but not good social policy".
Why wouldn’t it be constitutional? If people can be punished for being secretly recorded or for expressing an unpopular opinion then what the NFL is doing is perfectly legit. A society with stricter and stricter speech codes due to fear of the unwashed masses can only be a good thing, right?
  #39  
Old 05-23-2018, 05:52 PM
John Mace John Mace is offline
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So a team could rename itself "the Trumps" and make "MAGA" its logo, and compel the players to wear the slogan that way?
Maybe.

Seriously, I'm not really certain of the whole constitutionality issue, so I'm going to stop arguing about it and wait for the experts to chime in.

Last edited by John Mace; 05-23-2018 at 05:53 PM.
  #40  
Old 05-23-2018, 06:33 PM
mikecurtis mikecurtis is offline
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people are making some false assumptions here.
First, the players are not regular employees. They are contract employees protected by a collective bargaining agreement. At will rules do not apply.
The league has announced that this was a unanimous decision of the owners, but New York Jets co-owner Christopher Johnson has already come out and said that he will not require his players to stand and will pay any fines incurred by his players under this rule.
The collective bargaining agreement requires that the players association be consulted about any changes to rules relating to the players, and they were not.

and it's still 4 months away from the season. . .seems to be to be a trial balloon by the league to see where everybody stands.
all of this may be moot.

mc

Last edited by mikecurtis; 05-23-2018 at 06:36 PM.
  #41  
Old 05-23-2018, 07:22 PM
Banquet Bear Banquet Bear is offline
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Originally Posted by John Mace View Post
What if the players stand, but turn around? What if they cover their eyes with their hands? I think this is a losing proposition for the owners.
...I'm predicting this:

https://en.wikipedia.org/wiki/1968_O...k_Power_salute
  #42  
Old 05-23-2018, 08:23 PM
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The NFL announced that teams will be fined if players do not stand for the National Anthem. Players not wishing to stand are allowed to stay the locker room, but not on the field.

....
As long as the protesters are safely hidden away, where no one has to see them. People in this country really are fucked up. Cops kill black people with no consequence: Oh, that'll happen. Pro athletes kneel during our omnipresent Anthem: By gum, that's an outrage and I won't have it!

Last edited by bobot; 05-23-2018 at 08:25 PM.
  #43  
Old 05-23-2018, 08:33 PM
Tom Tildrum Tom Tildrum is offline
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Maybe.

Seriously, I'm not really certain of the whole constitutionality issue, so I'm going to stop arguing about it and wait for the experts to chime in.
I certainly think you're right, by the way, that this won't make the issue go away. If nothing else, with the Jets not enforcing, that guarantees New York media attention every week. Catnip for Trump in the weeks before the election, too.
  #44  
Old 05-23-2018, 08:36 PM
Leaper Leaper is offline
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People in this country really are fucked up. Cops kill black people with no consequence: Oh, that'll happen. Pro athletes kneel during our omnipresent Anthem: By gum, that's an outrage and I won't have it!
Well, that’s simple: it’s because they think that there is no such thing as systemic racism in America, and all minorities shot by police deserved it, so the players are just trying to stir trouble and insult white people for absolutely no reason (maybe “they’re animals” or something).
  #45  
Old 05-23-2018, 08:41 PM
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Is anyone reminded of the "super-patriotic" scenes in Catch-22? When the generals competed for who would be the most patriotic? Sign this loyalty oath to get your breakfast! Salute the flag for your lunch! Sign, salute and pledge allegiance for dinner or you'll starve!!
  #46  
Old 05-23-2018, 08:51 PM
Magiver Magiver is offline
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Standing for the anthem might be considered compelled speech. Employers don't have an unlimited right to compel employee speech.
and they can play with themselves in the locker room while the anthem is played.
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Old 05-23-2018, 09:07 PM
John Mace John Mace is offline
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Heh. I did think of that earlier, and I expect to see it, too!
  #48  
Old 05-23-2018, 11:37 PM
Chisquirrel Chisquirrel is online now
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Heh. I did think of that earlier, and I expect to see it, too!
It's already happened.

As for staying in the locker room - that's how it was years ago, so what's the big deal now? Assuming there's nothing else players are missing, then to hell with it.

If certain players are not being introduced because they're in the locker room, it's just going to paint a big target for snowflakes to cry about again.
  #49  
Old 05-23-2018, 11:39 PM
Velocity Velocity is online now
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Sign this loyalty oath to get your breakfast!
I misread this as "Sign this loyalty oath with your breakfast"...
  #50  
Old 05-24-2018, 12:13 AM
Guinastasia Guinastasia is online now
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The problem, as is so often the case nowadays, is Trump decided to get involved with it. He made public statements threatening possible government sanctions if the NFL didn't do something to stop player protests he didn't like.
How the hell could he do THAT? What kind of "sanctions" is he claiming he's going to impose?

That sounds like a bunch of bullshit.
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