This week, the NFL announced a new policy punishing players who “take a knee” in protest of police brutality and racism during the national anthem. The new policy requires all players on the field to “stand and show respect” for the flag — and if they don’t, their teams will be fined and individual players may be punished. The new policy does allow athletes to stay in their locker rooms during the national anthem: in other words, the policy says players can protest, but only out of the public eye.
The clearest illegality derives from the fact that the league adopted its new policy without bargaining with the players union. When employees, including football players, are represented by a union, the employer — including a football league — can’t change the terms of employment without discussing the change with the union. Doing so is a flagrant violation of the employer’s duty to bargain in good faith.
But the new policy has even deeper problems, because it bans a powerful form of workplace protest — in violation of the NLRA. As Professor Sachs writes:
In [a recent] decision, Epic Systems Corp v. Lewis, the [Supreme] Court concludes that the National Labor Relations Act is, at its core, designed to “protect things employees ‘just do’ for themselves in the course of exercising their right to free association in the workplace.” Put plainly, the Court holds that collective actions engaged in by employees at work are the heart of labor law’s concern.
Some might object that labor law does not protect these protests because they’re about something other than work: They’re about police brutality, or systemic racism, or the president’s view of what patriotism means. Of course, in some sense this is exactly what the protests are about. But in a more direct, literal sense, what the players are protesting is the requirement that they stand during the national anthem. That’s what the protest is: a refusal to stand.
Now that the owners have made it a workplace rule to stand during the anthem or stay in the locker room, any player who takes the field and takes a knee is protesting an employer rule. And that is unquestionably protected by federal labor law.
He also argues that players have a strong free speech case — especially when owners say the policy was made in response to President Trump’s disturbing calls for the NFL to retaliate against Colin Kaepernick. You can check out the full Vox piece here.
You can also read some of OnLabor’s excellent writing about the NFL anthem protests (and why they’re protected by labor law) here, here, and here. I also recommend David Seligman’s piece about employer collusion shutting Kap out of the league.