Why I Support the NFL's Right to Ban Kneeling

Two things you should know about me before you read this.

1. I absolutely believe in free speech. The government should never, ever punish anyone for voicing their opinion. You should be able to say whatever you want–even if it’s absolutely horrible–without fear of government reprisal. I will support you 100 percent in your quest to make a speech, hold a march, or even burn a flag.

2. I don’t care one whit about football and the NFL. I find government subsidies of football stadiums to be a horrendous thing and would never, ever vote in favor of such a subsidy. I find the NFL’s treatment of cheerleaders to border on criminal, and I don’t think they do enough to prevent brain injury. Would I say I have a positive view of the NFL? Absolutely not.

That out of the way, I support the NFL in their rule banning kneeling on the field during the National Anthem. Why? Because the players are at work.

For some reason, we seem to have this idea that we get to retain all our individuality when we go into the job. Maybe this comes with the idea of “bringing your whole self” which has kind of turned Google into a mess. I’m not sure. Additionally, we don’t really see NFL football players as employees–they are athletes.

Athletes who have a job. We don’t say, “Jim isn’t an employee–he’s a CPA!” Yeah, he can be both, and most likely is. Football players aren’t at-will employees (like almost all of us in the United States), as they do have contracts. But, that doesn’t make the NFL completely impotent in their ability to enforce workplace rules.

You certainly have more rights off the clock than on, but even those aren’t completely absolute. 

As employment attorney, Jon Hyman, pointed out, when discussing the termination of a white nationalist after the Charlottesville protests:

[H]e…has the constitutional right to peacefully express those opinions, no matter how vehemently one might disagree with his point of view. Those rights are what make America great. Those constitutional rights, however, stop at a private employer’s door. And I, as a private employer, have the right to hold my employees accountable for their viewpoints and terminate when I, in good faith, determine that those viewpoints may bleed into my workplace and create a hostile environment for other employees. I certainly have the right to fire when those viewpoints cross the line into violence or threats of violence. 

They can set workplace rules and this one is quite reasonable. You either stand and show respect during the National Anthem or you stay in the locker room (or a similar area off the field).

Last year’s protests were absolutely disruptive. The NFL lost viewership last year, and 50 percent of those who watched less football in 2017 did so because of the kneeling protests. If you had such a strong source for a loss of clients, you would strongly think about changing your rules.

Lots of people question why the NFL has taken such a hard line on this when they seem to ignore the bad off the field behavior of their players. It’s an excellent question and one we should continue to ask the NFL. 

Of course, there are two key differences: one is that they aren’t being utterly horrible at work. The other is that you can’t, legally, discriminate against employees purely on the basis of a conviction. You have to show that it’s related to the work at hand. While you can certainly argue that violence of any kind never belongs in any workplace and that should be an exclusion for work in the NFL, they haven’t made that argument.

Overall, the NFL is desperately trying to regain their viewership, and this is one step along that route. I absolutely support their right to enforce this rule. Now, will it work or will it backfire? It’s hard to tell before the season begins. It will definitely be worth watching, even if the I don’t find the football itself interesting.

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