Players don’t have as much freedom of speech as federal and state government employees and have morals clauses in their contracts but given that some owners locked arms with them, it seems unlikely they would now try to get rid of those employees for anthem protests.
Firing a National Football League player for kneeling during the national anthem isn’t as easy as President Donald Trump made it sound.
A team owner would need to be mighty determined and willing to endure some long-term public relations damage and legal bills. But those who know sports contract law say that when it comes to standing up for their beliefs, athletes are not as protected as some might think.
“The idea that they have a constitutional protection is wrong,’’ said law professor Mark Conrad, director of the sports business concentration at the Gabelli School of Business at Fordham University in New York. “They are private employees and they ultimately are subject to contract law and the collective-bargaining agreement.’’
Free speech is protected for federal and state government employees under the First and Fourteenth Amendments. Connecticut also has a law preventing private employees from being terminated for speaking their beliefs, as long as it isn’t during the course of their job duties.
Connecticut has no NFL teams. Conrad said he’s unaware of any other state with such a law.
Though Conrad said he personally finds it wrong that anyone would consider terminating somebody over an anthem protest, the typical morals clauses within a standard NFL player contract could be used to do just that — at least, in theory.
A “skill, performance and conduct’’ portion of NFL contracts allows for termination if a player’s conduct is judged to have adversely impacted or reflected on the team.
Another section pertaining to “rules’’ says players “will comply with and be bound by all reasonable club rules” and that violating them may affect a player’s relationship with the league and its teams. The “integrity of game’’ section of NFL player contracts also allows the commissioner to punish players whose conduct hurts “public confidence’’ in the “integrity and good character’’ of NFL players and is detrimental to the league.
So, even though the contracts don’t specifically mention standing for anthems, teams and the commissioner are given leeway in interpreting whether they were negatively impacted by conduct.
“You would have to prove that it shocked the conscience of a lot of people in the community,’’ Conrad said.
Longtime NFL agent Leigh Steinberg, in his 43rd year representing players, agreed that: “Either of those clauses could be used to terminate the contract.’’
Once that happens, he added, a player could be sued to recover any prorated signing bonus already paid. A player on a five-year contract who received a $10-million signing bonus upfront could be sued and forced to return up to $8 million if “fired’’ after one year.
It’s been argued – by no less than President Trump himself – that the league’s TV ratings are down in part because the public is turned off by anthem protests.
Given the media attention these protests are receiving – and the polarization it’s caused – proving shock value might not be all that difficult. Then again, with such protests now more common, a player could argue the public has been largely numbed by now to somebody kneeling, sitting or raising a fist.
“Here’s the irony,’’ Steinberg said. “Before President Trump stepped in, the amount of players who were doing a protest was very tiny. It was his intervention … that really spurred a large part of the reaction.’’
And while a team owner, could try to push NFL commissioner Roger Goodell to get rid of somebody, Goodell actually criticized President Trump for his “divisive’’ message about anthem protests and might not make the best ally.
The NFL Players’ Association would also almost certainly challenge any owner trying to have a player fired over an anthem protest. NFLPA executive director DeMaurice Smith tweeted on Saturday: “We will never back down when it comes to protecting the constitutional rights of our players as citizens as well as their safety.’’
Steinberg said that while NFL ratings may be down somewhat of late – due to myriad factors – the sport’s popularity remains historically high. “Last week, the No. 1, 2, 5 and six of the top-10 Neilsen rated nighttime shows were NFL televised football or a pregame show,’’ he said. “There’s never been a time in this country where one sport dominated both sports and television.’’
Steinberg figures the NFL has a good thing going and it’s “pretty unrealistic’’ to expect any owner would terminate a good player for expressing his beliefs. “You saw on Sunday where the owners were with respect to their players,’’ he said. “They were arm in arm with them. The bottom line to this all is that football is a very respected profession. Were this to go on and on and get more dramatic and really deter from the game, those factors could change.
“But we accept political activism in a variety of ways. It’s just part of being a free country.’’