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Benching NFL players for protesting during the anthem would be illegal

The owner of the Dallas Cowboys has sworn to do so

Members of the Dallas Cowboys kneel during the National Anthem on September 25, 2017, before playing the Arizona Cardinals.
Members of the Dallas Cowboys kneel during the National Anthem on September 25, 2017, before playing the Arizona Cardinals.
Christian Petersen/Getty Images

Last Sunday, Jerry Jones, the owner of the Dallas Cowboys, said he would bench players who did not stand during the national anthem. This threat was publicized nationally and applauded on Twitter by President Trump, who summarized the two men’s shared view: “Stand for Anthem or sit for game!”

On Wednesday, the president elaborated on his views, telling Fox News that the NFL “should have suspended” Colin Kaepernick for kneeling during the anthem because “you cannot disrespect our country, our flag, our anthem — you cannot do that.” It is quite possible the players have First Amendment protection against retaliation of this kind. The First Amendment generally protects citizens against the suppression of their speech by the government, not private entities like their employers. But when the president uses the power of his office to intimidate business owners into suppressing the speech of their employees — with both implied threats and specific ones — the possibility of a First Amendment violation becomes quite real.

Whatever the Constitution has to say about the matter, however, it is manifestly clear that Jones’s threat violates federal labor law. Benching, or otherwise disciplining, players who engage in anthem protests would be illegal.

The National Labor Relation Act forbids employers from taking adverse employment actions against workers who are engaged in “concerted activity for mutual aid or protection.”

So the first part of the labor law analysis, and the easiest, is whether “benching” counts as an adverse employment action of the sort the law prohibits. Some commentators have suggested that benching is not a sufficiently severe penalty to count (as they concede a heavy fine, or loss of job, might be). But anyone who has ever played sports, or watched sports, or had a kid who played sports, knows that benching is adverse. “Getting benched” is what happens to you when the coach wants to discipline or punish you. When your job is playing sports, getting benched is a pretty good definition of what adverse employment action means.

Employers can’t punish employees for “concerted activity for mutual aid”

The real issue in the anthem protest cases is whether the players’ actions constitute “concerted activity for mutual aid or protection,” which is what federal labor law protects. Again, the “concerted” prong is easy: There’s no question that the players involved are acting in concert with one another — i.e., together. The question is whether their anthem protests — which originated and remain directed in large part at questions of racial equality and justice, including the issue of police violence, as opposed to more traditional labor concerns, such as working conditions — are the kind of concerted activity that labor law shields against retaliation.

The fact that the protests are unmistakably “political” does not take them outside the scope of labor law. The Supreme Court, in Eastex v. NLRB, established — and the National Labor Relations Board has affirmed repeatedly — that labor law protects workers who engage in certain kinds of political advocacy. The limitation is that the political advocacy, to be protected by labor law, must relate to the employees’ status as employees. (Eastex involved Texas workers who, in a flyer promoting union solidarity, also called on workers to fight against a state “right to work” law and for minimum wage protections.)

And although, at first blush, the anthem protests may not seem to be about the players’ lives as players, there are several ways in which they most definitely are.

First, race discrimination — and certainly the acute kind that manifests as police violence — affects the targets of that discrimination across all spheres of their lives. Police violence directed at African-American men may happen away from the workplace, but that can’t mean that police violence has no impact on African-American men at work. Indeed, the idea that police violence, and other forms of race discrimination, can somehow be cabined away from work, just because that discrimination occurs away from work, is false. So when players protest societal discrimination against African-American men, this is a protest that concerns their lives as employees.

To be clear, labor law would not need to treat all types of off-work dynamics that potentially affect work as protected in order to treat the forms of race discrimination under protest here as protected. The law must draw lines of this sort all the time, and distinguishing things like racially discriminatory police violence from other forms of off-work behavior should be manageable.

Dallas Cowboys owner Jerry Jones has pledged to bench players who protest during the national anthem.
Dallas Cowboys owner Jerry Jones has pledged to bench players who protest during the national anthem.
Jennifer Stewart/Getty Images

Second, the NFL and the agreement the league has with the players stresses repeatedly that being an NFL player involves more than what happens on the field. For example, paragraph two of the standard player agreement states that a player must pledge to “conduct himself on and off the field with appropriate recognition of the fact that the success of professional football depends largely on public respect for and approval of those associated with the game.” In other words, the job of being a football player involves much more of what in many other occupations might be classified as non-work or non-employment matters. But the league can’t expand the definition of what it means to be an NFL player solely in order to restrict player conduct. Having defined the job as a public one, the league must then own the fact that players’ advocacy efforts around “public” issues — including race discrimination — concern the players as employees.

Protesting unfair punishment by bosses is core protected activity

Third, although all the protesters have solid protection from labor law for the reasons I’ve outlined, it would be even more blatantly illegal to bench anthem protesters in cases in which they are taking a knee as a means of showing support for teammates threatened with discipline for their actions — whether those threats come from a team owner or the president of the United States. For these protesters, taking a knee is a means of, among other things, expressing a view about what should and should not constitute a disciplinary offense at work. That kind of protest is the heartland of what labor law protects: It is absolutely core “concerted activity for mutual aid and protection.”

One final note. Even if anthem protests are protected by federal labor law, the players’ collective bargaining agreement could, in theory, waive their right to engage in them. The Supreme Court, however, has held that any such waiver has to be clear and unmistakable, and there is no such clear and unmistakable waiver in the players’ agreements that I’m aware of. Certainly, the language from paragraph two of the agreement — about conduct “on and off the field,” quoted above — doesn’t meet the standard.

Nor does language in paragraph 11 of the agreement, which allows a team to fire a player if the player “has engaged in personal conduct reasonably judged by Club to adversely affect or reflect on Club.” Again, it’s not specific enough.

There apparently also is a mention of the anthem in the “game operations manual” that suggests that players “should” stand during the anthem. It is unclear (at least to me) whether or how this manual is incorporated into the collective bargaining agreement. But the use of “should” rather than “must” makes it less than “clear and unmistakable” that the players’ rights in this respect have been waived.

The longer this goes on, the more evident it becomes that the players have a legal right to engage in the anthem protests. Labor law provides one such source of protection. Noah Zatz, a law professor at UCLA, has argued that Title VII, which forbids racial discrimination, provides another source.

Whatever the source of protection, however, the illegality of the threats issued by Jones and amplified by the president is clear.

Benjamin Sachs is the Kestnbaum professor of labor and industry at Harvard Law School. A version of this piece first appeared on the site

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