Joshua Robins – The NFL, America’s professional football league, is no stranger to controversy. In recent years, we have had the pleasure of watching the NFL gracelessly deal with: inadequate suspensions for domestic violence, dog fighting, and trying to convince the public that there is no correlation between playing football and CTE (a disease caused by repeated blows to the head). The NFL’s latest controversy is its players kneeling during the National Anthem.
It all started August 26, 2016 when Colin Kaepernick, an NFL player, sat in protest during the National Anthem. When asked why, he replied “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color.” Many players from across the league joined Kaepernick in protect and, in turn, many NFL fans became upset because they felt that these players were disrespecting their country and those fighting for it. Despite unrest from its fans and players, the NFL decided to do nothing and hoped that the problem would go away.
One year later, the problem did not go away. Just as the NFL thought the situation couldn’t get any worse, our outspoken, emotionally unstable, and newly elected president, Donald Trump, said that NFL owners should fire players who protest during the National Anthem. This exacerbated the problem because now more players than ever are protesting during the National Anthem.
Because of these protests, more and more football fans are opting to do more with their Sundays than watch football. Additionally, many sports bars across the country are refusing to show NFL games until the protesting ends.
Can the NFL prohibit its players from protesting during the National Anthem?
Yes, the NFL can prohibit its players from protesting during the National Anthem.
First Amendment Rights are Limited in the Workplace
One of the players’ biggest arguments is that they have a constitutional right to free speech, and the NFL would be infringing on that right if it decided to affirmatively put a stop to protesting during the National Anthem. However, this argument is misguided.
Although NFL players, like all Americans, have a constitutional right to free speech, that right only protects them against the government. The NFL is a private actor; it is not forced to grant its employees their full bundle of constitutional rights.
“A[n] employee may have a constitutional right to talk politics, but he has no constitutional right to be employed.” In other words, employees, generally, cannot say or do whatever they please during workhours. At the end of the day, the NFL is a private, for-profit business whose sole purpose is to make money. If a business, like the NFL, is losing money because of one of its employee’s unsolicited actions during workhours, then that business should be able to attain some form of recourse.
The players could argue that the NFL is a public actor because it receives tax breaks from the government and public funding to build its stadiums, but this argument also fails. A major reason why company owners choose to incorporate their businesses is because of tax incentives. Under the argument above, every corporation would be considered a public actor because they all receives tax cuts. Additionally, the government oftentimes uses public funds to help private businesses (e.g. the government taking land from one private actor and giving it to another in Kelo v. City of New London), but that doesn’t make these businesses public actors.
Looking Forward
There is no clear solution to this dilemma.
Most businesses would not have an issue firing a disruptive employee. However, the NFL is no ordinary business. If a NFL owner took President Trump’s advice and fired one of his players for protesting during the National Anthem, there would be several other teams waiting and willing to hire that player. Additionally, if the NFL decided to kick any player who kneels out of the league, it could lose many of its star players—ultimately hurting its business product.
The most surefire way the NFL can stop protesting during the National Anthem is if it changed its rules. Currently, the NFL’s game operations manual states that players SHOULD stand during the National Anthem. The NBA’s rules, coincidentally, affirmatively state that “Players, coaches, and trainers are to stand and line up in a dignified posture . . . during the playing of the National Anthem”; the NFL could take a play out of the NBA’s book.
However, just because the NFL can force its players to stand during the National Anthem doesn’t mean that it should. The NFL let this problem fester for way too long, and, because of this, it has missed its opportunity to make these kinds of rule changes without causes a national uproar. Because people will be outraged regardless of whether the NFL decides to keep or change its rules, the NFL’s best course of action is to work with its players to find more mutually beneficial ways to promote positive change and social justice.
