Can the NFL (or NASCAR) Fire People Who Take a Knee During the National Anthem?

by Evil HR Lady on September 26, 2017

What started out as one player, Colin Kaepernick, making a statement about race by kneeling during the National Anthem, has exploded into a national conversation about race, protest, the American flag, and how we should respond to such protests.Overall, the NFL has been supportive of the players’ protests, but on the flip side, NASCAR owner Richard Petty stated he would fire any of his team members who knelt during the National Anthem.

While the politics are hot here, I’m not taking a political stance. I’m asking a question: Can either the NFL or NASCAR legally fire, suspend, or otherwise discipline a player or driver for such a political protest? It’s clearly been damaging to the NFL’s bottom line and if a NASCAR allowed protests there, it would be damaging to their business as well. Remember, while we may see these sporting events as games or races, they are also businesses–big businesses. And the fans (read: customers) provide the cash to keep these businesses running.Without the fans, the business dies.

I reached out to Employment Attorney, Jon Hyman, a partner at Meyers, Roman, Friedberg & Lewis and asked if you could legally fire someone for protesting on the job.

To keep reading, click here: Can the NFL (or NASCAR) Fire People Who Take a Knee During the National Anthem?

{ 10 comments… read them below or add one }

grannybunny September 26, 2017 at 3:57 pm

How has the controversy adversely affected the NFL’s bottom line? (Or improved NASCAR’s?). I expect it’s too early to tell. More people were watching the contests, simply to see what each team did, and one NFL player’s jersey sales spiked because of his stance. By uniting, and refusing to allow themselves to be divided on partisan political bases, I think the football teams probably generated more good will than ill. I was certainly proud of the actions of my home team, the Dallas Cowboys. They took a stand — or, more accurately, a knee — for equality, then stood during the Anthem, to eliminate any accusation they were disrespecting the Flag, all while linked, arm-to-arm. They explained afterward that they all met, listened respectfully to each other, extensively dialogued and discussed the issue and agreed to their position. It was — obviously — a compromise and made the much-needed point that compromise is possible and can be a good thing. All-too-rare in these divisive times and simply genius!

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Goober September 26, 2017 at 6:04 pm

NFL revenues have been declining for a while. Kaepernick’s actions have probably contributed a little to that. But I seriously doubt this has raised more good will than ill, though, because on average, I suspect people who spend money on NFL entertainment (rather than jus watch games on TV) skew rather more conservative than liberal, which will predispose them to not like this.

Where it will really affect them, though, is that it just became *much* less likely that the taxpayers will be funding any new stadiums, or paying for tax incentives to get a team to move to a particular city. There’s discussion in Congress right now of prohibiting the former (though I suspect it’s very unlikely to go anywhere).

NASCAR is a bigger business than the NFL (the highest grossing professional sport, period, last I heard). And there, the fans definitely do skew conservative. But so do the people working there, so it’s unlikely to be much of an issue.

I do wonder, though, if the average NFL player’s contract says that his job is to play football, or to entertain the audience. If they are, contractually, entertainers, anything that pisses off the fans can be argued to be actively interfering with doing their job. (This is how Disney gets away with rules that would be brutally oppressive in most industries – you can’t wear a mustache because you’re an entertainer, and it doesn’t fit your role, that sort of thing.)

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Maria Rose September 26, 2017 at 8:17 pm

I have to agree with Gooper’s comment concerning the players as they as basically hired individuals to play sports. But the NFL is a business, so those owners are the ones who decide, how they want to please the consumers. If they are non-effected money wise by these protests, they are not going do anything about it.
If the viewers want to see no protesting at games, the viewers need to respond accordingly ( less support by viewership, team paraphernalia,etc..)
These owners are very independent thinkers and wealthy. They are not going to do anything to upset their status quo. Look at how responsive they have been to critical issues—CTE injuries and domestic abuse and steroid use by players. They tend to sweep these issues under the rug.
Let’s take the politics out of the picture and view it as an issue for us the Consumer. I for one, don’t need to know or see the players commitment to anything but how well they play the game. Anything they do to that diminishes my enjoyment is wrong and wil result in my (the Consumer) support.
We need to effect the bottom line profit and the players paychecks.

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Elizabeth West September 26, 2017 at 8:44 pm

I was surprised to see Missouri on the list of states that protect workers from retaliation re political activities. This state is VERY conservative and there are tons of NASCAR fans here. I don’t fit in at all, haha. But it’s nice to know that if I had an employer right now, I would have been protected for protesting when the Annoying Orange paid a visit to this city. Or for not standing up for the anthem, since I’ve decided I will stay seated until some things change in this country.

PS–just so people know, no one is obligated to stand for the anthem or salute the flag. There was some real confusion about this on social media. According to the 1943 Supreme Court ruling in West Virginia State Board of Education v. Barnette, the free speech clause of the First Amendment protected schools from forcing students to salute the American flag and say the Pledge of Allegiance.

The original plaintiffs were Jehovah’s Witnesses, whose religion requires them to be politically neutral, but the Court wisely left religion out of it and ruled you can’t compel ANYONE to engage in that manner of speech.

In response to the suggestion that it was a disciplinary matter that should be left to the school, Justice Robert Jackson said, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”

There have been other cases both before and after Barnette that uphold this precedent.

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grannybunny September 27, 2017 at 5:51 pm

Of course, the First Amendment doesn’t apply to the NFL or NASCAR, because — unlike schools — they are private entities. The First Amendment prohibits Government interference with free speech. Your private employer can still fire you for your speech or speech-like conduct without violating the Constitution.

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LTMG September 27, 2017 at 3:52 am

Very likely wouldn’t be legal to fire such people. When contract renewals are under consideration, it would be legal to deny a contract for just about any reason.

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grannybunny September 27, 2017 at 5:52 pm

Yes, that’s what some are saying happened to Kaepernick.

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charles September 28, 2017 at 2:57 am

” . . . national conversation about . . .”

hmm, no. Love you and your writing Suzanne; but, it isn’t a “conversation.” It is almost always a lecture that comes from the left and the news media.

Don’t agree with me? Just try being in a blue state and say that Kaepernick is a spoiled brat who wasn’t going to get his contract renewed anyway and used this “protest” as a way of getting support for when his contract wasn’t renewed. Go ahead, say that and see what happens. It won’t be a “conversation.”

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grannybunny September 28, 2017 at 4:38 pm

Maybe you’re hanging around with the wrong crowd?

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grannybunny September 28, 2017 at 4:42 pm

Maybe you’re hanging around with the wrong crowd? There’s a wide-spread, Nation-wide, conversation going on about whether Kaepernick’s merits as a player and the role — if any — played by his peaceful protest on his contract not being renewed and his not being picked up by another team.

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