Free Speech in the Workplace (and the NFL)

Free speech isn’t free – and that’s certainly true in the workplace.  That is one of the most tested aphorisms in our great nation’s history.   The NFL is on the brink of a very precarious legal and public relations issue, which can be summarized thus:  There 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.  The NFL is a massive business that stands to lose a lot of dollars very quickly if fans or advertisers turn on the League.

What are the legal ramifications of an NFL player like Colin Kaepernick sitting rather than standing during the pregame playing of the National Anthem?

There are multiple threads that run through this issue.  Can we ensure freedom of speech if the protesting players are shouted down by the NFL fans?  Can the League navigate this very thorny issue while looking sympathetic to both players and fans?  Can the League keep the media outlets and advertisers happy?  Those threads are to be explored in other posts.

The short answer is that the NFL and the teams can in fact mandate exactly what the players do during the National Anthem, provided that the Collective Bargaining Agreement between the players and teams allows it.  More detail as to why follows.  However, and this often happens,  the legal answer about what canhappen and the practical answer about what should happen aren’t always the same.

The federal laws that ensure protection from workplace discrimination aren’t absolute.   Title VII of the Civil Rights Act of 1964, along with a few other statutes,  prohibit workplace discrimination in limited circumstances.  In 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’s:

  1. age;

  2. gender;

  3. veteran’s or military status;

  4. religion;

  5. national origin;

  6. genetic information; and

  7. a few other protected categories.

This issue is often tested by the scenario in which an employee is professing a political viewpoint in the workplace.  Political viewpoints are not protected by federal (or by Pennsylvania) antidiscimination laws.  Thus, an employer can direct an employee to stop electioneering in the office.

Employment Contract Considerations.  The employment relationship between the players and the teams is governed by written contracts: the player’s individual contract with the team and the collective bargaining agreement between the players’ union and the team owners.  As long as those contracts do not have any provision that violates federal or state employment law, the terms of the contracts are controlling.  The teams’ first point of review should the employment contracts.

Is it a Civil Rights Issue?   No, it is not.  A 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.  The NFL’s a big business, but it’s not that big.  I think some of the lesser lights in the media (and there are many) are conflating these issues.  No one’s 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.

NFL head coaches, and by association the NFL executive leadership, have to figure out how to respond in a comprehensive way.  Does the coach or team ownership (i.e the boss) dictate to the players what actions they may engage in during an NFL game?  Seems like coaches in fact do that very thing in all facets of an athlete’s performance on the field.  Is this different because of the political aspects?  Legally, I say no.  From 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.