With President Trump’s announcement to fire the “SOBs” who kneel in disrespect to the flag and national anthem, the whole NFL protest has been the subject of discussion in our office. This brought up the question of whether firing the “SOBs” would be permissible, or retaliation under some law.
I first have to admit that “taking a knee” profoundly affected my NFL watching. My steadfast nearly 40 year loyalty to the purple and gold ended on January 19, 1999 when, ON THIRD DOWN, the Vikings inexplicably took a knee to send the NFC Championship game into overtime and LOSE by three points. This was the team with the most explosive offense in NFL history, 15-1, Randy Moss, Cris Carter, Robert Smith, etc. (I don’t blame Gary Anderson for missing the field gold as the Vikings were still ahead but he sure picked a crappy time to decide to miss his first field goal in TWO YEARS!!!). And to lose to the Dirty Birds of Atlanta too, where my sister lives and to have to endure her post game “better luck next time,” “isn’t that too bad,” “oh they came so close, again,” gloating. I pretty much stopped watching the NFL then, at least religiously, and so I don’t really have a dog in the current fight, except that I represent employers and employees.
In order to get to the employment issues, let’s figure out what this protest is about. Colin Kaepernick, a former San Francisco 49ers quarterback, began kneeling on the sidelines last year during the national anthem for this reason: “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color…To me, this is bigger than football and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder.” http://www.nfl.com/news/story/0ap3000000691077/article/colin-kaepernick-explains-why-he-sat-during-national-anthem.
Since then, other players have also knelt, or stay on the bench, or do warmups instead of standing at attention on the sideline, right hand over their heart, and facing the flag. Incidentally, the NFL has a section in its Game Operations Manual which says essentially: The National Anthem must be played prior to every NFL game, and all players must be on the sideline for the National Anthem. During the National Anthem, players on the field and bench area should stand at attention, face the flag, hold helmets in their left hand, and refrain from talking. The home team should ensure that the American flag is in good condition. It should be pointed out to players and coaches that we continue to be judged by the public in this area of respect for the flag and our country. Failure to be on the field by the start of the National Anthem may result in discipline, such as fines, suspensions, and/or the forfeiture of draft choice(s) for violations of the above, including first offenses.
The NFL has not taken action against anyone for their protests but some fans have become increasingly irritated with what those fans consider disrespect of the flag and anthem, the country and, by extension, the military, and law enforcement. The NFL has shown a double standard which has not gone unnoticed by many football fans. For example: the NFL barred the Cowboys from wearing a sticker that honored the five officers killed in Dallas; the NFL barred several players from wearing cleats in memory of 9/11 victims; the NFL penalized a Muslim player for praying after a touchdown and routinely criticized Tim Tebow for kneeling in Christian prayer. http://www.foxnews.com/sports/2016/08/12/nfl-denies-cowboys-request-to-wear-decal-honoring-fallen-dallas-officers.html; http://nypost.com/2016/09/09/police-unions-slam-goodell-promise-to-pay-players-fine-if-he-wears-911-cleats/ ; https://www.washingtonpost.com/news/early-lead/wp/2014/09/30/nfl-penalizes-muslin-player-for-praying-after-chiefs-touchdown/?utm_term=.1a1eb486f638; http://newbostonpost.com/2017/09/25/kneeling-during-anthem-good-kneeling-to-pray-bad/. However, Kaepernick, who originated the kneeling protest, was permitted to wear cop “pig” socks at practices. http://nypost.com/2016/09/01/colin-kaepernick-wore-socks-with-pig-cops/. President Trump whipped up attendees last week during a political rally in Alabama where to raucous cheers, he exclaimed:
“Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a bitch off the field right now. Out! He’s fired. He’s fired!'”
https://www.theguardian.com/sport/2017/sep/22/donald-trump-nfl-national-anthem-protests. A recent poll confirms that many Americans, over 60%, believe that these NFL players should stand respectfully for the anthem and flag and 50% are watching less football because of these protests. http://remingtonresearchgroup.com/.
In response to Trump, the following Sunday three teams did not take the field for the anthem at all, over 200 players at various games kneeled, sat on the bench or did warmups. https://www.nytimes.com/2017/09/24/sports/nfl-trump-anthem-protests.html. At the Monday night game, the Cowboys kneeled in advance of the anthem with the owner and coaches, and then stood while the anthem was played. One Pittsburgh Steeler, Alejandro Villanueva, led the league in weekend jersey sales when he was the only member of the Pittsburgh Steelers to walk out on the field and reverently stand for the Star Spangled Banner. http://money.cnn.com/2017/09/25/news/companies/alejandro-villanueva-jersey-sales-steelers/index.html. With the exception of Monday Night football, NFL TV ratings are down and DirecTV has been giving refunds on its NFL programming to customers who have complained. https://www.usatoday.com/story/money/business/2017/09/26/nfl-player-protests-hurting-ratings/703619001/; http://www.espn.com/nfl/story/_/id/20829346/directv-offering-refunds-fans-wishing-cancel-nfl-sunday-ticket-package.
The nuanced employment law angle here: The NFL and/or the various teams, as employers are in a situation where many customers are upset by what they perceive as employees’ direct insult to their country, their military friends and family, and their local law enforcement. Those upset fans are reducing their consumption of the employers’ product. The employees are taking this action specifically during work hours in opposition to the NFL’s stated directive. Can the employers discipline these protesting employees? In this circumstance, the employees at issue may feel (as Colin Kaepernick initially stated) they are protesting the racial discriminatory actions of authorities represented by the flag and anthem. Can such employees be disciplined by a private employer for this protest?
This is not a freedom of speech issue as this is a private workplace. Cherne Indus., Inc. v. Grounds & Associates, Inc., 278 N.W.2d 81, 94 (Minn. 1979). The employer can stop speech it does not want in its workplace. The Minnesota nonwork activities statute (Minn. Stat. § 181.938) does not help the employee, as it is occurring during work hours and has nothing to do with lawful consumable products. The statute actually hurts employees since it allows an employer can take action “to avoid a conflict of interest or the appearance of a conflict of interest with any responsibilities owed by the employee to the employer.” Id., Subd. 3(2).
The employees are not complaining about any discrimination in their workplace nor are they engaging in activities related to their work, such as pay, benefits or other workplace issues. In fact, most of these employees, on average, make $2,000,000/year. http://gazettereview.com/2017/03/average-nfl-player-salary/.
Since conditions of work or similar activities have no relationship to the conduct there is no NLRA violation and no underlying discrimination claim. So the question then becomes whether the protest is some sort of protected activity under the law?
The retaliation provisions of Title VII or the Minnesota Human Rights Act do not appear to directly describe the employees’ protest as “protected” conduct. First of all, the employee has not “participated” in a hearing, investigation etc. The second question is whether this protest is “opposing” a practice. The EEOC interprets this phrase as requiring an alleged violation of the EEO (Equal Employment Opportunity) laws. See EEOC Enforcement Guidance on Retaliation and Related Issues Section 2(b). The general opposition to police brutality disproportionately affecting people of color may not really be an issue arising under EEO laws. The MHRA opposition clause is broader in that it deals with opposition to any conduct illegal under the MHRA. See Minn. Stat. § 363A.15. Arguably, police protection may fall under “public services,” although the public services generally described in the statute is public transportation and not police protection. See Minn. Stat. § 363A.12. My sense, after noodling on this issue for a while, is that does not apply here. The MHRA does protect those who are “associated with” another race. See 363A.15(2). The application of the “associated with” provisions of the MHRA would raise the question of what does “associated with” mean? Do these affluent athletes have to know and/or spend time with the folks about whom Colin Kaepernick states he is expressing concern – urban people of color? (And, of course, the MHRA would not apply to Colin Kaepernick unless he played in Minnesota.)
Minnesota has a statute, Minn. Stat. § 10A.36, which makes it a gross misdemeanor to “engage in economic reprisals or threaten loss of employment or physical coercion against an individual or association because of that individual’s or association’s political contributions or political activity.” This appears in the campaign finance laws and seems to apply more to lobbying organizations but the statute, as written, seems applicable as the protest is undoubtedly political activity. Of course, if the NFL and/or the teams did discipline players for violating the rule about respecting the flag, it seems unlikely that any employer would be prosecuted for that discipline, any more than an employer who fired the Neo Nazis who participated in conduct their employers found objectionable in Charlottesville.
To sum up, in my view, the employers could, if they wanted to, take disciplinary action against employees who want to continue to alienate the customer base during their work time. Opposition to discrimination “does not serve as a license for the employee to neglect job duties.” EEOC Guidance § II(A)(2)(b). But, also remember the employer cannot act discriminately to satisfy its customer. See, e.g., Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908, 913 (7th Cir. 2010) (“It is now widely accepted that a company’s desire to cater to the perceived racial preferences of its customers is not a defense under Title VII for treating employees differently . . . .”). From the news reports and multiple on-line videos, comments, etc., I cannot say that the fan opposition to the protest is based on racism. The objecting fans cover all races and uniformly condemn what they consider unpatriotic actions of the NFL. See, for example, https://www.youtube.com/watch?v=kEcYDa7r4-I. In any event, I don’t think any Vikings are at risk because I understand that all of them are standing for the anthem (in my personal view, good for them!). Football provides an escape from the disappointing political divide we have in this country, not an instigator. The only taking a knee I want to discuss in football is the one taken to run out the clock, whether it be to win the game, or screw up your Super Bowl chances, like my formerly beloved Vikings did in 1999.
MY POINT OF VIEW, PERSONALLY, AS OPPOSED TO ON THE EMPLOYMENT LAW ISSUE: The flag and anthem belongs to all Americans and deserves our mutual respect. We can be divided politically but we are still united by a common country. Rather than feed further hate and division, the NFL should play football, not politics. If the NFL doesn’t take control of these protests and you don’t like it, turn it off. Mike Rowe, the “Dirty Jobs” television personality, suggested that in a recent Facebook post. https://www.facebook.com/TheRealMikeRowe/posts/1670661956277274. Speaking as one who knows, you won’t miss it.
THE PERSONAL VIEW OF MY COLLEAGUE, SHEILA ENGELMEIER: After Tom Marshall’s brilliant analysis, I see this is likely not a legal issue (although there is the potential “associated with” argument in Minnesota). However, it still is a justice and fairness issue, which often require as much attention from employers as legal issues and customer preferences. It doesn’t surprise me that some of the owners are siding with the players on this issue. Some of the players are upset about being called SOBs. For others, speaking out against racism is an important issue. An NFL player expressing a societal concern about racism is foreseeable given that those who play in the NFL are more than half people of color. As an employer, it is smart to take a stand on an issue that matters to your employees, so long as you don’t violate other employees’ rights in the process. And, of course, it is also smart to allow those athletes who desire to profess their love for country to do so as well.
In my view, the Vikings struck the right balance. A display of solidarity (locking arms) combined with an expression of respect for the flag. Don’t forget, however, kneeling does not have to be taken as a sign of disrespect. In the games I watched last weekend, I saw players kneel and put their hands over their hearts and/or sing the anthem.