On Wednesday, NFL team owners approved language to make players on the field stand during the national anthem. And as expected, the NFL Players Association is throwing a flag on the play.
And at the risk of speaking out both sides of our mouth, we are going to support both the owners’ right to determine on-field behavior by the players and the players’ rights to take political positions. The difference-maker, however, is the real estate on which it happens.
For those who have missed the background on this chapter, some NFL players began taking a knee during the playing of the national anthem in protest of what they considered mistreatment and brutality by police. Colin Kaepernick, who at the time was quarterback of the San Francisco 49ers, is generally regarded as the most recognizable player leading the on-field protests. The actions then spread across the fields of play and into the national spotlight — even inviting the never subtle ire of President Trump.
And in response, the NFL fumbled the situation, and fans noticed. Television ratings began tanking, fans began finding other ways to spend Sunday afternoons, and the NFL — a money-making venture — found itself in strange waters. The viewership drop of 9.7 percent for the 2017 season equates to a lot of money in advertising revenue, not to mention fighting for a fan base when consumers have an increasing number of entertainment choices at their fingertips.
The NFL owners then tossed what is known as a Hail Mary pass — a high-risk, high-return play when nothing else seems to work.
The ball is coming down from the sky and we’ll have to see how this plays out.
Already, the NFL Players Association is calling foul for the owners not first consulting them as well as requiring on-field players to stand for the national anthem. But, unfortunately for them, constitutional law is not with them on the latter. Players, when they walk on the field of play, are employees — and therein lies the rub.
“The First Amendment doesn’t apply to private institutions,” Erwin Chemerinsky, the dean of Berkeley Law and a constitutional law expert told The Washington Post. “Private employers can fire employees for their speech without having to worry about the First Amendment.”
Employers are well within their rights to determine behavior in the workplace. Much like the waitress at Denny’s cannot walk around wearing pins promoting one presidential candidate over another, the players of the NFL are no different. What does the NFL player share with the waitress from Denny’s? The constitutional right to make political statements in their private time and place so long as not on the property or representing their employer. Both the diner and the NFL football teams are businesses — both promoting a carefully crafted image, feel and product. Scrambled eggs and footballs on the same plate, if you will.
But let us also say we support the free speech of both the NFL players and waitresses. All have rights to say what they wish, promote what they believe, and not have the government to take action against them. Each can stand on the street corner, speak to local civic groups or we’ll even publish their letters. Open discussion of injustices and issues is a major factor in resolving problems in our nation. The waitresses and the NFL free safety share the same rights under the Constitution — as it should be.
But also understand the Supreme Court says free speech can only be limited by narrow forms of time, place and manner. Taking a knee (or wearing a political button) — as a paid employee performing employee work in a workplace environment — falls squarely into this window. To do so is to risk the repercussions of the actions. Not making the spirit of the action wrong, but does make it actionable.
There is no doubt the actions taken by the NFL player is motivated by the right principles — to bring attention to what they see as an injustice. And there is no doubt the largest platform to do so is while millions of viewers are tuned in or watching. We get that and applaud anyone’s courage to stand up for others whom they believe are being mistreated. But also, the NFL is, at the end of a day, a big business — and a very big business at that.
The ball is in the air, the flag is on the field and all that remains is will this new ruling lead to a resolution or simply another fumble?
• Leonard Woolsey