Fired for Kneeling During the Anthem? Maybe Not So Fast…
By Mark J. Swerdlin - Shawe & Rosenthal LLP
September 28, 2017
It’s Ravens-Steelers week. All talk should be on whether T-Sizzle sacks Big Ben, can Flacco start getting the ball to his wideouts, and will the Ravens regroup following their disastrous showing in London? However, unless you are living under a rock with no Twitter account, you know what the talk is—will the Steelers stay in the tunnel again during the National Anthem (they say no), will players kneel or express their political views in any other manner, will fans start burning player jerseys in front of the stadium? This is no idle question, due to an online petition to remove the Ray Lewis statue outside the stadium after he knelt during the anthem at the last game, the Maryland Stadium Authority has placed extra security around the statue of the Ravens legend.
President Trump has spoken (and tweeted) his views loud and clear: it is a privilege to play a sport and be paid handsomely for doing so, and any player (as you know, he actually referred to them by another name) that disrespects the flag or our anthem should be fired. Regardless of your views on that subject, can an owner fire a player for doing so? Can the National Football League discipline a player for doing so? The answer is complicated.
First, the players have a collective bargaining contract with the NFL. The CBA and League Rules addresses player conduct and in what circumstances the League may fine or suspend a player. The League routinely fines players for excessive hits on the field. The League has obviously suspended players for off-the-field conduct, especially since the Ray Rice (knocking his then-fiancee, now wife, out in an elevator) debacle. There is no rule in the NFL rule book governing how players are to conduct themselves during the playing of the anthem. The NFL Game Operations Manual does, however, contain guidelines on how players are to act during the anthem but these are suggestions, not mandatory requirements. And, even if the League were to act based on the CBA or League policies, bear in mind that any League-issued discipline related to anthem protests would be subject to the contract’s grievance and arbitration process. You know how that goes—see you in court Tom Brady and Ezekiel Elliot.
Regarding the question of a team firing a player, the CBA is also relevant. In a typical union shop, employers can terminate employees only for just cause. If a team decides a player’s protest has placed the team in a negative light before the public, that might be enough to satisfy the CBA and the player’s contract. However, you may ask, what about the player’s right to free speech? After all, the Supreme Court has held that the First Amendment’s right to free speech allows someone to burn the U.S. flag in protest; surely kneeling during the anthem is protected. This is a tricky area given that a private entity would be the one taking action in response to a political statement. The First Amendment (or equivalent right in a state constitution) applies to the government, not private actors: “Congress shall make no law …abridging the freedom of speech….”
Normally, employees have no right to free speech, nor any of the other rights enumerated in the Bill of Rights, in a private employment setting. However, last I checked, the Ravens do not play in a privately owned warehouse in an office park. They play at M&T Bank Stadium, a public edifice paid for at great expense by the taxpayers of Maryland. Does that change the calculus as to whether the protest is protected speech? Even if the stadium is considered a public forum, the team (a privately owned entity) must qualify as a “state actor” for the First Amendment to apply. That question is not so easily answered, and the legal analysis is likely way more than most readers of this blog are looking for. Suffice to say, do not be so quick to fire the “son of a b—-,” unless you truly enjoy America’s other favorite national pastime—litigation!