No, President Trump, NFL owners cannot legally fire players that #TakeTheKnee

And it has nothing to do with the First Amendment and freedom of speech.

ICYMI, some NFL players decided to protest during this week’s games.

On September 23, at a rally for Alabama Republican Senate candidate Luther Strange, President Donald Trump called upon National Football League owners to fire NFL players who take a knee in protest during the singing of the Star Spangled Banner. (You can read the full transcript here.)

On the 24th, President Trump followed that up with this tweet — because, of course — demanding that those who kneel be fired or suspended.

President Trump’s comments drew a huge backlash over the weekend as nearly every NFL team responded in some form of protest, ranging from players taking a knee during the national anthem to others remaining in the locker room. Even Dallas Cowboys owner, Jerry Jones, who previously intimated that he would not tolerate players who take a knee during the national anthem, well, he took a knee in solidarity with his team last night.

Would firing NFL players for taking a knee violate the First Amendment?

Come on!

We’ve gone over this before. Employees in private-sector jobs, such professional football players, have zero right to free speech at work — or even off the job.

So, Steve Mnuchin is right, firing a player for taking a knee would not violate his First Amendment rights.

However…

Firing NFL players for taking a knee would probably violate the National Labor Relations Act.

I’ve talked about the National Labor Relations Act a lot on this blog. Most notably, I tied it back to sports with this post about Major League Baseball’s social media policy. That’s when I addressed several provisions in MLB’s social media policy that prohibited disparaging comments and other ways that players could give MLB a black eye. My beef with those rules was that they were overbroad:

The National Labor Relations Board, which helps administer the provisions of the National Labor Relations Act, believes that social-media policies are overly broad if they unfairly restrict employees — union or non-union — from engaging in protected concerted activity. In simple English, if employees can’t discuss their jobs with one another, the Board has a problem.

Indeed, protected concerted activity is broad enough to include allowing employees to “take action for their mutual aid or protection” regarding terms and conditions of employment.

Kinda like protesting on the sidelines together.

And even if the social issues that crystallize these protests don’t bear directly on the working conditions in the NFL, even a tangential relationship to the workplace could be enough to trigger the broad protections of the National Labor Relations Act. (Trust me. The protections are hella-broad.) Even the NFL collective bargaining agreement, which limits concerted activity, doesn’t go so far as to prohibit these sideline protests:

Except as otherwise provided in Article 47 (Union Security), Section 6, neither the NFLPA nor any of its members will engage in any strike, work stoppage, or other concerted action interfering with the operations of the NFL or any Club for the duration of this Agreement, and no Clubs, either individually or in concert with other Clubs, will engage in any lockout for the duration of this Agreement.

Notwithstanding the solidarity displayed by players and management, you’d be hard-pressed to establish that taking a knee interferes with the operations of the NFL or any Club.

So, while President Trump and others may take umbrage with those who take the knee and engage in other forms of protest, calling for players to lose their jobs over it is nothing more than an empty threat.

“You’re fired?”

I don’t think so.

 

Updated:
  • Mary McClure Wright

    California Labor Code section 1101 prohibits employers from making, adopting, or enforcing any rule, regulation, or policy that forbids or controls, or tends to control, their employees’ political activities. If, as the conservatives claim, taking a knee is political protest (as opposed to in remembrance of black lives lost) (a) cannot be fired in CA, and (b) what about every player throughout history being told to take a knee in prayer in the locker room?