The Law Is on the N.F.L. Players’ Side

https://www.nytimes.com/2017/10/17/opinion/law-nfl-protests.html

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As National Football League owners and players’ union representatives meet in New York today and tomorrow to discuss the players’ recent demonstrations — the kneeling, linking arms or raising fists during the national anthem — they should know how the law views these protests. This will not only tell them what the league lawfully can do; it also will reveal something about American values.

There has been some confusion about the law and the anthem protests. Because the First Amendment generally treats government and corporate power differently, allowing a business to impose on its workers what the government could not demand from its citizens, many people assume the N.F.L. has the legal authority to “bench” the protesters, as the Dallas Cowboy owner Jerry Jones threatened, or to say, in the words of President Trump, “Get that son of a bitch off the field right now, out, he’s fired.”

But in this case, that analysis is mistaken. In fact, a confluence of bedrock laws are on the players’ side. Stifling the protests would be illegal.

Start with the Constitution. Under the First Amendment, which protects free speech and free association, the president of the United States could not enforce a law that, say, required football players to stand during the anthem. During World War II, the Supreme Court struck down such a demand for a flag salute during the Pledge of Allegiance. (Striving to distinguish the United States from its authoritarian adversaries, the court said its ruling gave “strength to individual freedom of mind in preference to officially disciplined uniformity for which history indicates a disappointing and disastrous end.”)

In the N.F.L. case, President Trump has been intervening actively and repeatedly to suppress speech he opposes on political grounds, even suggesting using the tax code to punish the N.F.L. if it doesn’t toe his line. This puts the government’s fingerprints all over the protest backlash. Thus the Constitution should protect the players from corporate retaliation at federal behest. It certainly protects the N.F.L. from federal retaliation should it resist presidential demands.

But it’s not just the Constitution that protects here, because the players also have rights as workers, rights they have been asserting both through the original protest and to rebuff the backlash. The New Deal of the 1930s and the civil rights movement of the 1960s saw landmark laws passed to bring into the private-sector workplace many of the constitutional values that constrain government action. These values include not only free expression and association but also the race and gender equality of the Equal Protection Clause and the 13th Amendment’s commitment to race and labor freedom.

One leading example of these laws is the Civil Rights Act of 1964, Title VII of which bars race discrimination by private employers. Title VII speaks to the anthem protest controversy because it is in large measure about race. The racial dimensions include the issue of police discrimination against African-Americans that is central to the protests. They also include the perceived impertinence of black athletes who, in protesting, supposedly “don’t know their place.”

Title VII protects workers from retaliation when they oppose what they reasonably perceive to be race discrimination, even if someone else can reasonably disagree and even if a court ultimately sides with the skeptic. When N.F.L. players act in solidarity against the threat of getting fired or otherwise disciplined for stepping out of racial place, they act in opposition to employment discrimination, and the law forbids employer retaliation.

Finally, there is labor law, passed during the Great Depression to reorder work and balance power between management and employees. The National Labor Relations Act protects employees who engage in “concerted activity for mutual aid and protection.” This covers not only union activity but also employees’ political advocacy around issues that affect their lives as employees.

The anthem protests are exactly this kind of advocacy, for three reasons. First, when black players protest police violence directed at African-Americans, they are targeting something that can impact their work lives even if it transpires off the field. Second, the N.F.L.’s contract with its players repeatedly asserts that their job involves more than what happens on the field. Having defined the job as a public one, the N.F.L. must accept that players’ public advocacy cannot be cordoned off from their role as employees. Third, many anthem protesters are now taking a knee to support teammates threatened with discipline, an act of solidarity at the core of labor law’s protection.

Each of these three bodies of law — constitutional law, civil rights law and labor law — independently protects players from retaliation for anthem protests. But the fact that all three converge in this case is even more significant. It means that when Mr. Trump addresses these Americans protesting for racial justice at work and says “you cannot do that,” he is dead wrong.