Freedom of Speech
The Super Bowl is over and there were no protests. There is no doubt that the issues from the 2017-18 season remain relevant and the discussion will almost certainly continue into next season. Although the NFL was at the forefront of the issue, the anthem protests brought national attention to not only police brutality, but the First Amendment and its limitations in the workplace. There is no doubt that teams and leagues are private employers, each team is privately owned and operated, but professional sports leagues operate in a sphere that is both private and public. The team owners operate their respective franchises as private entities, yet the ubiquitous nature of sports makes it feel as though the teams are a part of the public sphere.
Teams and leagues are bound by private association law. They must provide some form of due process, follow their own rules, they cannot commit fraud, they cannot act illegally, and they must apply their rules in a manner that is neither arbitrary nor capricious. Players, as at-will employees of their teams, are not protected by the First Amendment. Players’ rights are governed by their individual contracts and the collective bargaining agreement (“CBA”).
Specifically, with respect to the NFL, the CBA provides the rules for everything from roster size and arbitration procedure, to discipline and the retirement process. In the current CBA, the players do not have explicit protections for their First Amendment rights. The CBA does, however, contain a vague clause that would most likely be used by teams and the League as the authority for disciplining players who protest during the national anthem. The clause states that teams and the League may discipline a player for “conduct deemed detrimental to the team/league”. “Detrimental conduct” is not defined. The clause allows the teams and the League to dole out discipline on a subjective basis. Even though the League has a responsibility to follow the precedent set by earlier disciplinary holdings and teams must provide players with a list of rules prior to the beginning of the preseason, the players are at a distinct disadvantage with respect to discipline, and that is without considering the Commissioner’s role as judge and jury.
In this system, the League and the teams have the upper hand with respect to discipline and specifically the First Amendment issues that have plagued this past season. Due to the players status as at-will employees, and the fact that the protests created a media frenzy and fan boycotts across the country, including a constant flow of articles correlating the decrease in ratings to the protests, the teams and the League have all the justification they would need if they began disciplining players for the protests. Furthermore, while attendance on the field during the anthem is required, the game operations manual states that players should “stand at attention” for the anthem.
Recent news suggests that the League and the owners may demand a rule change. The recent report that FOX will be paying more than $660,000,000 to show eleven Thursday Night games may be evidence that the 2017-18 fan boycotts and dip in ratings were slightly overstated. Additionally, the NFL refused to publish an advertisement in the Super Bowl program sponsored by AMVETS which would have prominently featured “#PleaseStand.” Per the Associated Press, the NFL’s statement in response to a letter from AMVETS included that “the NFL game program has ‘never been a place for advertising that could be considered by some as a political statement.’” If the NFL were to begin disciplining players for protesting, both sides could potentially use the aforementioned quote in support of their positions: the players arguing that the NFL issuing discipline is a political statement, and the League arguing that the discipline is to stifle political discourse in the workplace.
Whether or not the NFL’s decision to refuse the AMVETS advertisement will impact future protests and potential discipline remains to be seen, but the next CBA will almost certainly include clear language with respect to protesting, free speech, and/or disciplinary reform.