Menu
Leagues and Governing Bodies

NFL anthem rule would stand on firm legal ground

The NFL, the target of criticism from President Donald Trump over whether players should stand for the national anthem, is on strong legal ground if owners decide to unilaterally require players to stand, law experts said.

It’s unclear that’s where the league is headed. Owners meet this week, and in a rare move invited NFLPA leadership to the gathering, a sign they may want to avoid any decree from above on the issue. But if compromise fails with the players, the NFL could require standing.

While it is popular among the players’ defenders to talk about First Amendment rights, those rights apply only to government action, not private employer situations, said Cornell University law professor Stewart Schwab.

“The First Amendment really tells government what it can and cannot do,” he said.

Some argue that because many of the stadiums are publicly owned, or because public tax dollars went into the construction, the First Amendment holds sway. Schwab disagreed, saying the critical issue is whether the government is the one compelling standing for the anthem.

It’s unclear whether the league will move to compel players to stand for the national anthem.
GETTY IMAGES
There could be some exceptions, however.

“In states like California, the free speech provisions of the [state] constitution have been deemed applicable to private sector employees,” said Bill Gould, a Stanford Law School professor and one-time chairman of the National Labor Relations Board.

Owners might be able to make a legal case, he added, if they can prove that, by kneeling, players are harming the sport’s economic interests. He pointed to the arbitration case of former pitcher John Rocker, whom MLB suspended in 2000 after he made derogatory comments about minorities in an interview. An arbitrator reduced the suspension in part because MLB did not make a case that its economic interests were hurt by the free speech exercised by Rocker, Gould said.

If the NFLPA and NFL are unable to reach consensus and the league does require standing, the union is likely to file a grievance. That grievance would face long odds.

First, unlike the NBA, where players are required to stand, the issue has not been collectively bargained. Leagues have wide discretion over conduct on the field, Gould said.

Schwab added the NFL could make the case that standing for the anthem has been the norm under this and past CBAs. Players began attending and standing for the anthem in 2009.

One unrelated union has already filed a grievance with the NLRB over Dallas Cowboys owner Jerry Jones’ comment that he would bench any player who does not stand. Gould said the NLRB does not have jurisdiction over politics, and unless the players are protesting terms and conditions of their employment, he predicted the agency wouldn’t get involved.


SBJ Morning Buzzcast: March 18, 2024

Sports Business Awards nominees unveiled; NWSL's historic opening weekend and takeaways from CFP deal

ESPN’s Jay Bilas, BTN’s Meghan McKeown, and a deep dive into AppleTV+’s The Dynasty

On this week’s Sports Media Podcast from the New York Post and Sports Business Journal, ESPN’s Jay Bilas talks all things NCAA. Big Ten Network’s Meghan McKeown shares her insight into the Caitlin Clark craze. The Boston Globe’s Chad Finn chats all things Bean Town. And SBJ’s Xavier Hunter drops in to share his findings on how the NWSL is making a social media push.

Learn more about your ad choices. Visit megaphone.fm/adchoices

SBJ I Factor: Nana-Yaw Asamoah

SBJ I Factor features an interview with AMB Sports and Entertainment Chief Commercial Office Nana-Yaw Asamoah. Asamoah, who moved over to AMBSE last year after 14 years at the NFL, talks with SBJ’s Ben Fischer about how his role model parents and older sisters pushed him to shrive, how the power of lifelong learning fuels successful people, and why AMBSE was an opportunity he could not pass up. Asamoah is 2021 SBJ Forty Under 40 honoree. SBJ I Factor is a monthly podcast offering interviews with sports executives who have been recipients of one of the magazine’s awards.

Shareable URL copied to clipboard!

https://www.sportsbusinessjournal.com/Journal/Issues/2017/10/16/Leagues-and-Governing-Bodies/NFL-anthem.aspx

Sorry, something went wrong with the copy but here is the link for you.

https://www.sportsbusinessjournal.com/Journal/Issues/2017/10/16/Leagues-and-Governing-Bodies/NFL-anthem.aspx

CLOSE