Labor / Employment, On The Job

The Magical World Of Unions, Or Why Colin Kaepernick’s Kneel Isn't About Free Speech

There isn't a winning scenario for the NFL in this situation.

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(Photo by Steve Dykes/Getty Images)

Unions are dying, despite the fact that millennials say they support unions. I have a lot of theories about this, but one of the interesting side effects has been fewer Americans understand what being unionized means.

I did a fair amount of traditional labor work early in my career, and the first thing you learn as a labor lawyer is the Collective Bargaining Agreement is your Bible. Sure, they all have “management rights” clauses (these are phrases that give management a seemingly unfettered right to do what management “needs” to do to keep the company running), but if your CBA touches on a topic, that clause won’t save you.

For those in the know, the NFL’s CBA has come under a lot of scrutiny. Some people say that the NFLPA acted idiotically in agreeing to it, as it makes Roger Goodell judge, jury and executioner for the league. Just ask Tom Brady.  Even if you hate the Pats, you can’t like the idea of one man with all that power.

But, it’s what the parties bargained for, so it’s what the parties got. I can tell you the average NFL “fan” has never seen the CBA. And unlike many CBAs, the agreement touches on, in general terms, all sorts of topics that players deal with. Working as a professional athlete is unlike any other job in this regard.

But with that power comes some pretty specific limitations. If it isn’t in the CBA, the NFL probably can’t do it.

Which brings us to the player protests that everyone is talking about. The NFL has strict rules about player conduct, on and off the field (again, ask Brady). But there is an apparent hole regarding conduct on the field during the national anthem.

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A Brief History Of The National Anthem (At Sporting Events)

Patriotism for Americans is a unique issue. How you feel about patriotic displays says a lot about you.  People assume the NFL is particularly patriotic. But that isn’t true.

Playing the national anthem at sporting events is actually a recent development. Newer still is requiring players on the field. The NFL requires players to be out on the field during the anthem because the U.S. Government pays the NFL to help with recruitment. Kind of like when recruiting officers go to schools driving Hummers.

The NFL monetizes everything about the sport they can. Once you have sponsorship, and pay those big bucks to the NFL, the NFL forces the players to only give time to those sponsors as set forth in the CBA and the sponsorship agreements. If, for example, you are Beats Audio and go directly to the players, you miss out when Bose goes to the NFL.

Colin Kaepernick found a tiny sliver of light in the CBA and in the agreement with the U.S. government sponsorship, and made his move. The NFL couldn’t fine him. The NFL couldn’t suspend him. And the NFL can’t do anything about the protest that others have taken up in support of him, because they are bound by the CBA. From an employment lawyer’s perspective, you have no free speech rights at work. But with a CBA, in effect it may look like you do.

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What Can The NFL Do (From An Employment Lawyer’s Perspective)?

The NFL has options. It can exercise its management-rights clause, and demand that all the players stand and put their hands over their hearts. This will inevitably result in a lawsuit. The NFL would likely lose. And this would likely spur even more protests during this narrow window where those protests are possible. The NFL players have a lot of causes I’m sure they want to give air time to. This could open a flood gate of issues, and cause serious issues with sponsorship. What if all the players whip out Beats Audio headphones during the anthem? What would Bose do then? Or iPads? What would Microsoft do then about their sponsorship?

The NFL can also do what they have been doing, and ignore it. It seems that ignoring it isn’t going over well with wide swaths of fans. But given this weekend’s events, I don’t see what other choice they have.

The NFL can do one other thing, though it will likely cut into this stream of revenue at a time when the owners may be getting worried about revenue: they could send the players back to the locker room. That’s where they used to be anyway during the anthem. But if that’s the case, they can likely kiss the revenue from the U.S. Armed Forces goodbye. And given who runs the NFL, kissing revenue good bye isn’t their thing.

In addition, while I haven’t even been a college athlete, even I know from my high school track days that bringing politics onto the field has got to suck for the players, who need to be mentally sharp to both win and decrease their likelihood of injury. Protests make people uncomfortable, including the protestor. And the player is uncomfortable right before he goes out to throw his body headfirst around a field.

I don’t think there is a winning scenario for the NFL in this situation. But I do know that in the end, this isn’t a free speech issue. And I think that when the next CBA is up for renewal, things are going to get very interesting and very tense, very fast. While it won’t be the end of football (there’s too much money in that), I wouldn’t count on there being a season whenever the NFL’s CBA goes up for renewal again.

beth-robinsonBeth Robinson lives in Denver and is a business law attorney and employment law guru. She practices at Fortis Law Partners. You can reach her at [email protected] and follow her on Twitter at @HLSinDenver.

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