In 1883, the United States Supreme Court decided the Civil Rights Cases which established the longstanding principle that the constitution only applies to the states, and not private actors.[1] Because the NFL is a private actor, it is not bound by the federal constitution and can limit employees’ expression in the work environment. Over the last several years, it has become apparent that the League is inconsistent on where it stands when it comes to freedom of expression and who is allowed to say and do certain things.
In 2016, the NFL came under scrutiny when former San Francisco 49ners quarterback Colin Kaepernick took a knee during the national anthem in protest of racial injustice and police brutality[2]. At first, the NFL and Commissioner Goodell backed Kaepernick and the players who joined him. However, after criticism by many, including the President, the NFL announced a new rule.[3] This rule banned players from kneeling in protest during the playing of the national anthem before games. If players decide not to stand, they can stay in the locker room but, if they violate the rule, their teams will be fined.[4] The vote approving this rule prompted an immediate grievance from the NFL Players Association, but the rule remains in effect today.
While Kaepernick was never formally disciplined by the league for his actions, he has not stepped foot on an NFL field since 2016 and he likely never will again. As of this past year, Kaepernick is still training and hopeful about a return to the NFL.[5] Stepping back onto the field would not only be a major moment for Kaepernick, but a major accomplishment.[6] He believes that he could “bring a lot to a team and help them win a championship.”[7] However, this belief might be hard to turn into a reality unless an NFL owner gives him a chance, which has not happened in the last nine years.
This past season, the NFL was back in the spotlight when San Francisco 49ers defensive end Nick Bosa crashed a post-game interview with teammate Brock Purdy wearing a “Make America Great Again Hat”.[8] Bosa was fined $11,255 by the league for violating the rule that prohibits players from wearing or displaying items “which relate to political activities or causes, other non-football events, causes or campaigns, or charitable causes or campaigns.”[9] But the fine did not come until after the election, as the NFL did not want to make this a last-minute issue for the campaign.[10] This rule applies when players are visible to stadium and TV audiences, including postgame interviews.[11] The inconsistencies with how the NFL handles these issues has left those subjected to the rules wondering what’s punishable and when, if ever, they will be fined.
The next issue the NFL could be faced with is what, if any rules are they going to have surrounding live performances? Are third parties who contract with the league going to be subjected to their rules regarding freedom of expression? Kendrick Lamar’s halftime performance during Super Bowl LIX has many talking and trying to figure out what exactly he was trying to convey to the 133.5 million viewers.
During the performance, lights in the crowd spelled out “WARNING WRONG WAY.”[12] The meaning of this message is up to interpretation, but some fans think it meant that the United States was headed in the wrong direction.[13] Others think it meant that the performance was going in the wrong direction compared to what Uncle Sam wanted.[14] Moreover, one of the more striking images from the show was Kendrick Lamar surrounded by dancers dressed in red, white, and blue which created a flag. During the performance Lamar stood in the middle of the flag that was divided into two sides, each of which had their backs turned to each other at one point.[15]
While it’s not clear exactly what the performance was intended to symbolize, it was a statement, nonetheless. If the show was intended to be a political statement, should Kendrick Lamar and Roc Nation be subjected to the NFL’s policies since this was a league event? Going forward, all eyes are going to be on the NFL and Commissioner Goodell to see how they handle large events with live performances from third parties.
Image Credit: https://1000logos.net/nfl-logo/
[1] C.R. Cases, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835 (1883)
[2] https://www.sportingnews.com/us/nfl/news/nfl-national-anthem-policy-2020-kneeling-protests/1o88fwivdxvqu1d8nnbiw5dw3z
[3] https://www.natcom.org/publications-library/nfls-response-2017-national-anthem-protests-shows-how-organization-protected/
[4] https://www.espn.com/nfl/story/_/id/23582533/nfl-owners-approve-new-national-anthem-policy
[5] https://sports.yahoo.com/colin-kaepernick-still-training-still-134718799.html
[6] Id.
[7] Id.
[8] https://www.nbcsports.com/nfl/profootballtalk/rumor-mill/news/report-nfl-deliberately-delayed-nick-bosa-maga-hat-fine-until-after-election
[9] Id.
[10] Id.
[11] Id.
[12] https://www.usatoday.com/story/entertainment/music/2025/02/10/kendrick-lamar-super-bowl-halftime-show-message-easter-eggs/78383497007/
[13] Id.
[14] Id.
[15] Id.