#TakeTheKnee, Part II: Why the NFL Teams Must Allow the Protests to Continue

The NFL is subject to a Collective Bargaining Agreement, the most recent version of which went into effect in 2011.  The term of the current CBA is ten years and it will expire in 2021 (the "NFL CBA"). 

In the overwhelming response to my prior writings on the #TakeTheKnee controversy (the first article from 2016 here, and yesterday's post here) one astute commenter asked whether the NFL Collective Bargaining Agreement has any impact on the NFL's official stance on player protests in uniform.

In short, a close reading of the NFL CBA shows exactly why the NFL has no choice but to let the players protest, at least within the confines of the 2017-2018 season.  

Because the conduct (i.e. the protest during the National Anthem) occurs before the contest begins, there is no penalty that a referee can assess against a player for participation in any protest-related activity.  That effectively rules out any League-imposed discipline until the NFL offseason meetings.  

That leaves us to examine whether the NFL clubs themselves can impose any discipline.  For example, if a player from the Philadelphia Eagles protests by taking a knee during the playing of the Anthem, can the Eagles as an organization impose discipline against that player.  The answer is - in short - yes, the team can do exactly that.  However, as you will see below, there is a very practical reason totally independent of the public relations mess it would cause why the clubs are not going to take any action against the players for protesting the Anthem. 

Article 42 of the NFL CBA defines when the NFL clubs may impose discipline on a player.  A condensed version of that list follows below.   NFL clubs may impose discipline on a player for: 

  • Being overweight;
  • Unexcused late reporting for mandatory off-season minicamp, meeting, practice, transportation, curfew, scheduled appointment with Club physician or trainer, scheduled promotional activity, scheduled workout, weigh-in, or meal;
  • Failure to promptly report injury to Club physician or trainer;
  • Losing, damaging or altering Club-provided equipment;
  • Throwing football into stands—maximum fine of $1,770.
  • Unexcused late reporting for or absence from preseason training camp by a player under certain conditions;
  • Unexcused missed mandatory meeting, practice, curfew, scheduled appointment with Club physician or trainer, material failure to follow Club rehabilitation directions, scheduled promotional activity, scheduled workout, weigh-in, or meal;
  • Unexcused failure to report to or unexcused departure from mandatory offseason minicamp;
  • Material failure to follow rehabilitation program prescribed by Club physician or trainer;
  • Unexcused missed team transportation;
  • Loss of all or part of playbook, scouting report or game plan;
  • Ejection from game;
  • Any material curfew violation the night prior to the Club’s game may be considered conduct detrimental to the Club.

Got it?  No mention of political protesting, or self expression is contained in Article 42.  

Now, there is one large catch all provision in Article 42 subparagraph (xv) - "Conduct Detrimental to the Club".  This is a circumstance in which an NFL club may impose discipline, but what conduct is covered in subparagraph (xv), is surprisingly not defined in the NFL CBA.  Presumably, any of the defined offenses contained in the above list from the beginning of Article 42 do not constitute Conduct Detrimental to the Club, otherwise there would be absolutely no reason for subparagraph (xv) to appear in the CBA.  That language would be totally duplicative and thus unnecessary. 

Here is the hinge of the entire matter: The Uniformity Clause

Article 42 also contains a section entitled "Uniformity", which provides:

Section 3. Uniformity:
(a) Discipline will be imposed uniformly within a Club on all players for the same offense....the NFLPA expressly reserves the right to challenge the imposition of such discipline for conduct detrimental to the Club based upon the absence of just cause and/or any other allowable bases for opposing discipline. 

What those 15 words mean is that if an NFL club imposes discipline against one player for protesting, it must impose the same discipline on all players who protest.  If all the players on a single team protest in concert, then the NFL club is in a bind - it cannot discipline every player on the team simultaneously.  The NFL can't afford the bad PR at this point. 

The Uniformity Clause plus the NFL Players' Association's right to appeal Club Discipline effectively ties the NFL Club owners' hands on this issue.  The Anthem protests are going to continue, and I suspect grow more widespread to other sports as we go forward.