The NFL is still the NFL, which is to say it’s still as crooked an enterprise as they come. Nearly two weeks after several (Donald Trump-donating) NFL owners locked arms with their players during the national anthem in shows of “solidarity,” the league changed its obscure rule about standing during the national anthem.
In fact, it was none other than smirking-ass Dallas Cowboys owner Jerry Jones who said that Trump had “reminded him” of the rules, which were buried in the “Policy Manual for Member Clubs,” as Deadspin uncovered.
While the rules had previously mandated that players should “stand at attention” with their “helmets in their left hand” for the national anthem, the NFL discreetly changed one section regarding punishments.
The 2014 policy reads that failure to be on the field by the start of the national anthem may “result in disciplinary action from the League office.” The version currently being promulgated by the NFL revises this to read “result in discipline, such as fines, suspensions, and/or the forfeiture of draft choice(s) for violation of the above, including first offenses.”
NFL Commissioner Roger Goodell also clarified the league’s stance with a memo released to NFL executives and owners today that says, “We believe that everyone should stand for the National Anthem.”
But can the NFL do this? The league is a private employer, so the answer seems obvious: First Amendment protections do not apply in the private sphere. But there are some important legal complications to consider. We’ve outlined a few of them below.
Is the NFL really a private employer?
Your constitutional right to free speech does not prevent your employer from punishing you. Jemele Hill’s example makes this clear, as do myriad other instances. But the funny thing is, the NFL may not be a truly private entity.
As a recent Forbes article pointed out, NFL teams receive a good amount of public funding (i.e., tax dollars) for stadiums. In fact, one federal lawsuit from 1978, Ludtke v. Kuhn, found that a Major League Baseball rule banning female reporters from entering the Yankees’ clubhouse was a state matter, since the city was involved in the team’s stadium lease. It’s not unfathomable that some NFL teams might be considered, in Forbes’ words, “public actors.”
Is there any legal precedent that would protect players?
One court case from 2013, Mendenhall v. Hanesbrands, found that an athlete signed to a contract couldn’t be fired for his or her political speech unless it specifically violated the terms of the contract. With Pittsburgh Steelers running back Rashard Mendenhall, the speech in question was several 9/11 conspiracy tweets that prompted Hanes to drop him as a spokesperson. When Mendenhall took the brand to court, a federal judge in North Carolina had to decide whether a jury should hear the case. The case went forward, and the two parties eventually settled.
This is why the NFL’s rule change regarding the national anthem is significant: An athlete choosing to protest might be seen as violating the terms of his or her contract.
What does the NFL collective bargaining agreement say?
Previously, NFL players’ right to freedom of speech was protected by the league’s collective bargaining agreement. Before the rule change, the understanding was that a player may be punished for “conduct detrimental to the integrity of, or public confidence in, the game of professional football,” according to Article 46 of the CBA.
But players could easily argue that their demonstrations during the anthem—meant to draw attention to racial inequality and injustice—did nothing to erode the integrity or public confidence in the game. Rather, players could argue that by exercising a protected constitutional right, they were modeling core American values, as Sports Illustrated recently pointed out.
The CBA does allow players to enter a formal arbitration if they do get punished by their teams, though, which could launch a number of lengthy and costly challenges if NFL teams choose to bring the hammer down on protesting players.
Still, with Goodell’s memo today on the importance of standing for the anthem, it seems unlikely that the league would side against owners in these instances.
Does Trump’s influence count?
Here’s one instance when we might want to thank the president for opening his fat, dotard mouth (if it weren’t his fat, dotard mouth that wrought this in the first place).
As Forbes points out, Trump’s repeated calls to NFL owners to fire players who demonstrate during the anthem could be looked at as government pressure. And why not? He’s the country’s highest elected official. The entire purpose of the First Amendment is to protect citizens from government intrusion or regulation of protected rights. That Trump so explicitly called on owners to punish protesting players could, well, come into play.
Editor’s note: A previous version of this post incorrectly stated that the NFL was a nonprofit organization. The NFL office dropped its nonprofit status in 2015.