By Jordan Kobritz
After spending months in discussions, NFL owners announced a compromise that, according to them, will end a two-year run of national anthem protests by players.As biographer James Boswell wrote in the Life of Samuel Johnson, the NFL owners’ so-called “compromise” is little more than a triumph of hope over experience.
The new policy, heralded as a unanimous vote that post-announcement comments by a number of owners made clear was anything but, requires players to stand for the national anthem if they are on the field during the performance.However, the league gave players the option to remain in the locker room until after the anthem is performed.The NFL says it has the authority to fine teams if a player does not “show respect for the anthem.”The league interprets that phrase to include sitting or kneeling during the performance as dozens of players have done since former San Francisco 49ers quarterback Colin Kaepernick initiated the practice during the 2016 season.Teams that incur fines will in turn have the option to fine the players, although several teams, the New York Jets and San Francisco 49ers included, have said they will refrain from doing that.
In defense of the new policy, NFL Commissioner Roger Goodell said, “We want people to be respectful of the national anthem.We want people to stand — that’s all personnel — and make sure they treat this moment in a respectful fashion. That’s something we think we owe. [But] we were also very sensitive to give players choices.”
According to Kaepernick and others, the so-called disrespect for the flag and the military is anything but.Their stated goal has been to draw attention to police brutality and social injustices involving African-Americans.Goodell admitted as much.”It was unfortunate that on-field protests created a false perception among many that thousands of NFL players were unpatriotic,” Goodell said. “This is not and was never the case.”
Ironically, the NFL had taken steps to support the issues that fueled the protests. Earlier this year owners and players held joint meetings to discuss ways to work together to address those topics.In fact, just days before adopting the new anthem policy the league announced a $90 million social justice platform with the Players Coalition, a group of players that discussed their concerns with owners without the presence of the NFLPA but with the union’s blessing.So much for cooperation between the parties.
The new policy was adopted as part of the NFL’s Game Operations Manual (GOM), one of the three comprehensive policy manuals for clubs, according the league’s website.It contains almost 200 pages of procedures and policies for regular season games alone.The purpose of the GOM is to “govern the conduct of home clubs, to ensure they protect players and provide the conditions for a fair and fan-friendly contest.”
Including the new anthem policy in the GOM was an effort by the league to avoid collective bargaining with the players on the issue as the union does not have to sign off on the GOM. Whether that position can survive a potential legal challenge by the union remains to be seen.Players could argue that the new rules constitute a workplace rule that is the subject of mandatory bargaining.The union might argue that the employment of protesting players would be jeopardized if teams decline to employ them for fear of being fined, which could constitute a violation of Section 1 of the Sherman Antitrust Act.
The NFLPA could also file a grievance alleging that Article 2 of the Collective Bargaining Agreement (CBA) makes it clear that the CBA supersedes policies unilaterally adopted by the league, e.g., the GOM manual.In fact, the GOM covers such things as player equipment and medical personnel available on game day, items that would seem to require mandatory bargaining with the union.
While there are several legal avenues the NFLPA can take in response to the league’s unilateral action, the players’ union is arguably the weakest union among the four major professional sports.It has historically deferred to management on this and similar issues.Whether they are prepared to grieve and/or litigate the national anthem policy remains to be seen.
The new anthem rule was adopted after the league was subjected to harsh rhetoric from President Trump in the wake of player protests.A number of owners admitted they feared further criticism from the President could exacerbate declining television ratings and attendance, attributed in part to what many believe is player disrespect for flag, country and our military.True or not, if the players argue collusion with the government – the President of the United States is an agent of the government — it might benefit Kaepernick in his pending collusion grievance against the league for failing to obtain a contract offer for the past two seasons.
Whether the NFL has the legal right to unilaterally enact the new anthem policy should have been irrelevant.What we do know is neither the NFLPA nor any individual players were involved in crafting the new rules.That means instead of eliminating player protests the new edict is guaranteed to inflame an issue that had become relatively dormant.
Instead of creating a legal issue, the NFL should have addressed this as a management issue and approached it from a practical perspective.They could have included the players in the decision, as the NBA does.Instead, it chose to ignore them.Bad move.We don’t have to wait until the season begins to know this:the NFL’s new anthem policy will do the exact opposite of what it is intended to do.
The author is a former attorney, CPA, Minor League Baseball team owner and current investor in MiLB teams. He is a Professor in and Chair of the Sport Management Department at SUNY Cortland and maintains the blog: http://sportsbeyondthelines.com. The opinions contained in this column are the author’s. Jordan can be reached at jordan.kobritz@cortland.edu
