E. Gary Spitko
San Francisco 49ers players. (AP Photo/Marcio Jose Sanchez)
E. Gary Spitko is a Presidential Professor of Ethics and the Common Good and professor of law at Santa Clara University. Views are his own.
The start of the 2018 National Football League (NFL) season has again focused attention on the decision of some NFL players to kneel during the national anthem as a silent protest against racial injustice. The protest movement began when then San Francisco 49ers quarterback Colin Kaepernick chose to kneel during the national anthem before games to draw attention to systemic racism in society and to police brutality. Other players soon joined with Kaepernick. As intended, these protests have focused public attention on issues of racism, especially in our criminal justice system. Often, however, public debate surrounding these protests has focused on whether the protesters are inappropriately disrespecting our national symbols and the men and women who have served in the nation’s armed services. Many, including President Trump, have called on the NFL team owners to ban player protests during the national anthem and to take disciplinary action against the players who choose to protest, which raises the issue of whether NFL players have a legal right to protest during the national anthem.
In general, legal protections for workplace speech are very limited. Such protections might be found in the U.S. Constitution and state constitutions, statutory law, tort law, and contract. In the case of the NFL player protesters, only contract law is a likely source of workplace speech protection.
The federal Constitution and state constitutions constrain government employers but not private employers. Thus, generally it is nonsensical to speak of “First Amendment” rights against a private employer. (A unique Connecticut statute extends the protections of the First Amendment to private employees unless their speech causes reputational injury or poses a conflict of interest for their employer.) In short, the First Amendment does not limit the right of NFL team owners to discipline player protesters.
For private employees, a significant source of statutory workplace speech protection is found in sections 7 and 8 of the National Labor Relations Act (NLRA). (These NLRA protections do not apply to government employees.) Section 7 of the NLRA protects “concerted activities for the purpose of … mutual aid or protection.” Section 8 prohibits employers from violating section 7 rights. Pursuant to these provisions, the NLRA may protect workplace speech only if the speech involves or is preparation for group activity, relates to a matter of common concern among employees, and addresses terms or conditions of employment. Even then, the speech will be protected only if it is not unduly disruptive of the workplace.
For the NLRA to afford protection to the NFL player protesters, one must be able to connect the protests to the players’ work life: Section 7 protects only concerted activity concerning working conditions. The chief argument against finding NLRA protection here is that the player protests do not relate to working conditions. Indeed, the players are not complaining about how the NFL treats them. Rather, they are protesting racial injustice in society more broadly. Section 7 does not protect this. In contrast, consider when the owner of the Houston Texans NFL franchise argued in respect to the protests that “the inmates should not be allowed to run the prison.” Many Texan players then got together and decided to “take a knee” to protest that comment. Arguably, that instance of protest was concerted activity relating to a matter of common concern among players relating to their working conditions.
Even if one were to conclude that the national anthem protests are within the scope of Section 7, concerted activity must be carried out using appropriate means. One might argue that protest that arguably manifests disrespect for the national anthem, the flag, or the military and that certainly alienates a large segment of the NFL fan base is not an appropriate means. In sum, the NLRA is not likely to protect a claimed right of NFL players to protest societal racial injustice during the national anthem.
Additional sources of potential statutory protection for workplace speech are whistleblower statutes and the anti-retaliation provisions of various employment statutes, particularly nondiscrimination statutes. For example, Title VII of the Civil Rights Act of 1964, which proscribes employment discrimination on the basis of race, color, national origin, sex, and religion, makes it unlawful for an employer to retaliate against an employee because the employee has opposed conduct that is unlawful under Title VII. A worker invoking Title VII’s opposition clause must demonstrate a reasonable, good faith belief that the employer’s conduct complained of is unlawful. Moreover, the form of the employee’s opposition may take the employee outside the protection of the act. Illegal activity, gross violations of company policy, and “disloyal or excessively disruptive” behavior are not protected. As the U.S. Court of Appeals for the Fourth Circuit has said, “Title VII was not intended to immunize insubordinate, disruptive, or nonproductive behavior at work.”
For Title VII’s antiretaliation provisions to apply to the NFL player protests, the players would have to demonstrate that they have acted in opposition to their employer’s behavior which they reasonably and in good faith believed to be a violation of Title VII. Again, however, the players are protesting societal discrimination rather than discrimination by their employer. There is simply no connection between these protests and employment discrimination on the basis of race by the NFL. Moreover, as with the NLRA, one might argue that the form of the protests—during the national anthem—would take the protests outside the protection of the act.
Finally, “just-cause” clauses in employment contracts may provide workplace speech protection. Relatively few U.S. workers benefit from employment contracts with just-cause protections. NFL players, however, are among those who enjoy such protections, through the National Football League Players Association’s (NFLPA) collective bargaining agreement with the NFL.
In the end, the right of the NFL to ban player protests during the national anthem or to punish players who engage in such protests will largely depend upon the NFL’s collective bargaining agreement with the NFLPA. If the collective bargaining agreement forbids the protest, the NLRA will not protect the protest. A provision of the collective bargaining agreement allows the NFL to discipline a player for “conduct detrimental to the integrity of and public confidence in” the league. The right of NFL players to protest during the national anthem may come down to an arbitrator’s interpretation of this language.