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The NFL and Kneeling during the Anthem

Ever since Colin Kaepernick took a knee during the anthem before a National Football League (“NFL”) preseason game in 2016, there has been ample commotion and analysis surrounding race relations in the United States. Kaepernick kneeled to voice his opposition to police brutality–particularly against African Americans–and racial tensions more broadly within the United States. ((Marc Edelman, Can the NFL Really Fire Players for Kneeling during the Anthem, Forbes (Sep. 28 2017), https://www.forbes.com/sites/marcedelman/2017/09/28/nfl-trump-kneeling-national-anthem/#4c2af03c2976.)) Not long after his protest, Kaepernick quickly found himself out of the NFL, and speculation that he lost his job because of his protest was quickly circulated around the country. In another turn of events, on September 22, 2017, at a rally in Alabama, President Trump called for NFL team owners to fire all players who take a knee during the anthem. ((Id.)) This possible encroachment of what is seemingly constitutionally protected free speech has raised an intriguing question regarding the constitutionality of potential employment terminations carried out by the NFL owners. ((Nicole Lewis, The NFL and the First Amendment: A guide to the debate, Wash. Post (Oct. 5, 2017), https://www.washingtonpost.com/news/fact-checker/wp/2017/10/05/the-nfl-and-the-first-amendment-a-guide-to-the-debate/?utm_term=.b8f0c633c8e9.))

The right to free speech is firmly entrenched in the First Amendment of the Constitution. However, the right is not unlimited. As a non-governmental private entity, the NFL and its players are well within their own rights to execute contracts that restrict the players’ free speech, as the Constitution only governs state action. ((Id.)) The NFL game operations manual explicitly requires the players and coaches to stand during the national anthem. ((Id.)) Interestingly, the manual is only a high-level organizational guide that teams can follow at their own discretion. ((Id.)) No specific mention of the anthem or standing during the anthem is mentioned in the NFL Constitution, its bylaws, or the collective bargaining agreement signed between the league and the players union. ((NFL, Constitution and Bylaws of the National Football League, https://onlabor.org/wp-content/uploads/2017/04/co_.pdf.)) Access to the contracts signed by individual players would be needed to determine whether the players have indeed signed away their First Amendment rights. A sample NFL player contract on the Securities and Exchange Commission website does not contain any provisions allowing the to termination of a player’s contract for political actions and/or protests. ((Securities and Exchange Commission, NFL Player Contract, https://www.sec.gov/Archives/edgar/data/1573683/000104746913009713/a2216998zex-10_3.htm.)) It remains unclear, but at least on the surface it seems as though the players have not signed away their First Amendment rights.

Even assuming that the players have signed away their rights to free speech, a similar situation involving constitutional rights was discussed in 1978 when a female reporter was prevented from entering the New York Yankees locker room. ((Ludtke v. Kuhn, 461 F. Supp. 86, 88 (S.D.N.Y. 1978).)) The court held that the City of New York’s investment in and involvement with the team imputed to it the label of “state action” even though the team is a private entity, and as such the team was required to abide by the strictures of the Constitution. ((Id.)) While it is certainly true that the facts from that case can be differentiated from the issue at hand, both sets of facts involve an invasion into constitutional rights by private entities. It would not be too far-fetched to assume that at least some NFL teams are affiliated with their cities, especially considering the massive subsidies municipalities offer teams to induce them to build stadiums.

Of course, no such constitutional issue will arise unless an NFL team explicitly fires a player for kneeling during the national anthem. Colin Kaepernick’s lawsuit against the NFL owners for collusion may bring the issue to light in the courts and paint a better picture of how the judiciary perceives the situation. ((Michael McCann, Colin Kaepernick’s Collusion Claim: Does he have a Case, Sports Illustrated (Oct. 15, 2017), https://www.si.com/nfl/2017/10/15/colin-kaepernick-collusion-lawsuit-against-nfl.))

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Jae Myoung Sohn

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