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NFL anthem rule would stand on firm legal ground

NFL anthem rule would stand on firm legal ground

By Daniel Kaplan, Staff Writer

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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.
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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.


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