“Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a bitch off the field right now. Out! He’s fired!’”
That was President Donald Trump speaking at a rally in Alabama in support of Senate candidate Luther Strange on Friday night. Trump was referring to NFL players such as Colin Kaepernick and others who have protested police brutality by kneeling during the national anthem.
I reached out to nine legal experts and asked them a simple question: Can the NFL legally do what the president wants them to do? More to the point, can NFL players be fired for exercising their constitutional right to free speech in this way?
All agreed that the Constitution limits what government can do on this front, but not what private companies like the NFL can do. “The First Amendment to the US Constitution is specifically designed to limit government officials and not private businesses,” Keith Whittington, a professor at Princeton University, told me.
Ultimately, “this is a contracts question, not a constitutional question,” says Jessica Levinson, a law professor at Loyola Law School. “The issue boils down to whether or not NFL owners have the contractual right to fire players for this type of behavior. The answer is ‘likely yes.’"
The nine legal experts’ full responses, edited for clarity and style, are below.
Yes, the NFL can do that
Peter Shane, law professor, Ohio State University
NFL teams, as private entities, are not covered by the First Amendment. Does it violate the First Amendment for the president to urge a boycott of private firms that refuse to retaliate against employees for their peaceful political protests? Like many of Trump's despicable and divisive tactics, that’s a novel question for the courts. It would be against the law for Trump to threaten government action against a private entity in order to provoke the firing of employees based on their party affiliation, but that statute appears inapplicable here.
Susan Bloch, law professor, Georgetown University
The Constitution only limits what the government can do. The NFL is not the government, so the Constitution does not limit the NFL's actions. So no, the US Constitution would not prevent a player from being dismissed. But NFL rules and the team's contract with the player do limit the league and the teams’ actions and may thereby protect the player.
Keith Whittington, politics professor, Princeton University
The NFL is constrained in how it treats players by its own collective bargaining agreement, but the First Amendment to the US Constitution is specifically designed to limit government officials and not private businesses. From a constitutional perspective, the players could be sanctioned by their employers for exercising their right to free expression.
From the perspective of our civic culture, however, I would hope that we would generally resist the president’s suggestion that we use social institutions to stifle individual dissent that the president or the general public finds offensive or discomforting. A free society should be tolerant of hearing dissenting perspectives in the public sphere.
Steven Duke, law professor, Yale University
Unless firing by the NFL is “state action,” and I doubt it is, nothing in the Constitution would preclude the firing. The First Amendment is a limitation on government power only. Assuming the First Amendment does not protect the players against being fired, the question is one of private law: whether the charter of the NFL and its written and unwritten agreements with players and with the teams provide protection similar to that of the First Amendment.
Ric Simmons, law professor, Ohio State University
In theory, workers may have rights under their employment contracts which limit the reasons why an employer can fire them, but this will almost certainly not be the case in the NFL.
Both individual player contracts and the players' collective bargaining agreement give the owners expansive powers to discipline or fire players for a wide variety of reasons, including for conduct that diminishes "public respect" for the game — a broad term that could easily be interpreted to include controversial political protests.
Owners may still have to make guaranteed future payments to a fired player, as they would if he were cut for any other reason, and of course they might face heavy criticism (or praise) in the court of public opinion, but there are no legal barriers to taking this action.
Jessica Levinson, law professor, Loyola Law School
In two words: likely yes. The First Amendment protects against government censorship. The law is very different when it comes to private employers and their ability to fire private employees, as opposed to government employers firing government employees. This is a contracts question, not a constitutional question. The issue boils down to whether or not NFL owners have the contractual right to fire players for this type of behavior. The answer is "likely yes."
The NFL probably has the right to fire the players (but it’s complicated)
Renato Mariotti, former federal prosecutor, 2007-’16
If NFL owners decide to fire players who kneel for the anthem, there is very little legal recourse for the players. Perhaps they could argue that this is concerted activity under the National Labor Relations Act, but that would be an uphill battle because this is not directly related to the terms and conditions of their employment.
That doesn’t mean that it’s appropriate for the president of the United States to call on private employers to fire people who disagree with him. The First Amendment prevents government entities and officials from harming people based upon the content of their speech. Here, the president’s words are probably too disconnected from any employment decision by an NFL team for them to be governmental action from a legal perspective.
This morning, there has been talk about reducing governmental subsidies to teams that supported players who protested. That would be the sort of governmental action that would trigger First Amendment protections.
Mark Tushnet, law professor, Harvard University
The answer's the same as the one given when people asked whether private employers can fire supporters of the Charlottesville white supremacy demonstrations: The general rule is yes, but that has to be qualified because some states have anti-discrimination laws that prohibit employment discrimination on the basis of political affiliation, and some of those statutes might be interpreted to cover the players' activities.
No, the NFL can’t do that
Diane Marie Amann, law professor, University of Georgia
No, the NFL cannot do what the president wants them to do. Absent a term in the employment contract by which both the player and management have agreed to specific behavior during the playing of the anthem, the player has reserved his constitutional right to observe that moment as he chooses.
[Editor’s note: Upon further review, Amann revised her opinion and sent this follow-up: My colleagues above are correct in pointing to what is called the "state action doctrine" as the reason that, in fact, the Constitution, standing alone, does not prevent team owners from firing their employees because of their behavior during the playing of the national anthem. No less than the rest of us, a football player enjoys freedom of speech under the First Amendment to the Constitution. This means that the state -- that is, the government -- cannot punish him for observing the anthem as he chooses, as long as his observation does not intrude improperly into others' freedom of speech and expression. But the NFL is a private organization, not bound by the First Amendment. Thus the Constitution does not prevent the NFL from firing an employee. That said, employment contracts may provide players some protection in this area.]