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”.

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.

Why?

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

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.

Standing for the anthem might be considered compelled speech. Employers don’t have an unlimited right to compel employee speech.

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.

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.

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

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.

And in the agreements with the Player’s Union. That’s where the protections are for the players.

They’re not fining the players, they are fining the teams.

I predict a lot more players staying in the locker room until the anthem is over.

From the USA Today article on this subject:

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.

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.

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.)

It compels them to wear uniforms, right? And helmets with a particular logo?

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.

How sure are you of this?

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?

Those are not political in nature. Political speech is handled differently from commercial speech.