NFL Anthem Protests: Protected Concerted Activity

I’ve been getting a number of press calls asking whether the NFL players who are sitting down during the national anthem might be disciplined by the League for doing so, or whether they enjoy legal protection against such employment action. I recommend, as a backgrounder on this issue, Michael McCann’s analysis in Sports Illustrated, which Vivian mentioned this morning. But, in my view, the players have a set of legal protections that has yet to garner much attention: namely, the protections of the National Labor Relations Act.

As McCann correctly observes, the First Amendment doesn’t do much work in the NFL context, given that the NFL is a private sector workplace. Perhaps the players could try to import the First Amendment to the private sector through a Novosel-type public policy tort (one of the great cases in the employment law canon), but that is likely a longshot. On the other hand, the National Labor Relations Act provides plausible protection here. As the Board and the courts (including the Supreme Court) have made clear, employees’ “political” activity enjoys protection under the NLRA so long as that activity concerns the employees’ status qua employee, and so long as it is concerted activity. The photos of yesterday’s games leave zero doubt on the concerted front.

So, do the protests concern the players’ status as employees; as players? Most obviously, if more narrowly, the protests are now directed in part at President Trump’s comments about concussions and the new rules meant to address that crisis: Trump called the rules “soft.” To the extent that any player is expressing political opposition to a President that denigrates league safety rules, or player complaints about safety, the political expression is unquestionably related to the players’ status as players.

More broadly, as the players’ collective bargaining agreement repeatedly acknowledges, being an NFL player – being an NFL employee in this capacity – involves both on-the-field activity and an explicitly public role. To take one example, Paragraph 2 of the 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.” Because the public-facing part of the job is part of the job, a player could reasonably believe that standing up for his vision of a just society – including one that features greater racial equality, less police violence, and more respect from political leaders – is part of what it means to be an NFL player. Some owners might disagree with this vision, and some players might as well. But that’s not the issue. So long as the player involved in the protest is expressing his vision of what our public life should be like, he has a viable claim that the expression is part of his role as an NFL player.

One last note. If I’m right, and the anthem protests are NLRA protected, then when President Trump calls for players to be fired for their protest, the President is asking the League to violate federal law.