Billionaire NFL owners, led by Dallas Cowboys owner and Donald Trump flunkie Jerry Jones, decided last week to sneakily shift the rules and give Trump what he’s been hungry for: a mandate that football players MUST stand during the national anthem or risk the possibility of fines and/or disciplinary actions.  Can anyone spell I-L-L-E-G-A-L??

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Taking a knee during the anthem was made famous by former NFL star quarterback Colin Kaepernick, who did so in protest of police brutality toward African-Americans.  However, Kaepernick was not the first football player with a penchant to protest.  Former NFL standout Tim Tebow was widely praised for kneeling during the anthem in his protest of abortion.  So, why was the white player’s protest against abortion OK, but the biracial player’s protest against police brutality not OK?

Let’s take a look at the facts in an explanation from The New York Times:

NFL owners were busy handing out prizes at their meeting in Atlanta, doling out Super Bowls to various cities and giving Nashville the 2019 draft.

Then they gave one to themselves: A new anthem policy adopted with the fervent hope that the protests sparked by Colin Kaepernick will go away and the golden goose that is the NFL will continue to soar untouched.

Stay in the locker room if you wish during the national anthem. But don’t even think about kneeling on the sideline where you can be seen.

This wasn’t an attempt to settle a real issue, not even close. This was strictly for self-preservation and to keep any protest off the TV cameras and away from the prying eyes of the current tenant of the White House.

This one is for Jerry Jones and his fellow billionaires.

They’re the ones who want desperately to move any protests about social injustice to the locker room, where no one but the towel guy will notice. They’re the ones who called the new policy a compromise, yet made no real concessions to protesting players and didn’t even bother consulting the players’ union on the plan.

Their new rules are as simple as they are absolute: If you want to protest, do so by staying in the locker room during the national anthem.

Then get your rear out there and play a game.

Despite the extremely obvious favoritism owners provided to Tebow and not Kaepernick, their decision last week was not only wrong but also illegal.  Here’s why:

1.)  THE PLAYER’S UNION WAS NEVER CONSULTED

The league adopted its new policy in secret and without bargaining with the player’s union.  According to the law, when employees (including football players) are represented by a union, the employer — including a football league — can’t change the terms of employment without first discussing the change with the union. Doing so is a flagrant violation of the employer’s obligation to bargain in good faith.

If, as the NFL Players Association says, the employer implemented this change on its own, the policy is flatly illegal for that reason and should be rescinded by the league.

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2.)  OWNERS CANNOT HALT A WORKPLACE PROTEST

The owner of a commercial business may not halt any peaceful protest — such as a strike — by its employees.  That is the law.

For clarity, no one need look any further than a recent ruling from the Supreme Court which states precisely why the players’ anthem protests are protected by US labor laws. In the decision of Epic Systems Corp v. Lewis, the Court concluded that the National Labor Relations Act is, at its core, designed to “protect things employees ‘just do’ for themselves in the course of exercising their right to free association in the workplace.” Put plainly, the Court holds that collective actions engaged in by employees at work are the heart of labor law’s concern.

With that in mind, it may be impossible to come up with a clearer example of something employees “just do for themselves” as a means of “exercising their right to free association in the workplace” than the anthem protests. They are a perfect example of the type of concerted activity that labor law is designed to protect.

Now that the owners have forced a workplace rule to stand during the anthem or else stay in the locker room, any player who takes the field and takes a knee would be protesting an employer rule — which is unequivocally protected by federal labor law.

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3.)  THE RULE TRAMPLES FREEDOM OF SPEECH

The constitutional right to free speech applies only to censorship by government entities.  However, players have a viable free speech claim due to the involvement of Donald Trump and The White House in coercing owners into changing the rules for their own justification.

Donald Trump has blatantly and regularly involved himself in the league’s decision-making process.  During an earlier round of the protest dispute, Trump called on the league to discipline Colin Kaepernick and others for leading the anthem protests and threatened to use the tax code to punish the NFL if they allowed such protests to continue. VP Mike Pence even participated in a staged walk-out of a 49ers game where anthem protests began.

However, the most damning evidence is the admittance by the owners themselves.

NFL owners publicly made it clear that their adoption of the new rule was made in response to presidential pressure. They believed that unless they banned the protests, Trump would continue to make it a national issue and thereby negatively affect the league’s income stream.

As Jerry Jones blabbed to Sports Illustrated, Trump “certainly initiated some of the thinking, and was a part of the entire picture.”  Or, in other words, the intimate involvement of Trump and Pence in strong-arming a private employer to adopt a workplace rule was in direct defiance of the Constitution.

According to Benjamin Sachs, the Kestnbaum professor of labor and industry at Harvard Law School: “That’s why, for example, employees cannot be fired for fulfilling jury duty, or for refusing to perjure themselves on the employer’s behalf. If an employee is disciplined for one of these reasons, he is entitled to sue the employer (through what’s called a public policy tort).”

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So, let’s recap:

Donald Trump decided, in his warped mind, that he didn’t like seeing NFL players kneeling during the national anthem.  Believing himself to be KING of the United States and completely ignoring something called the US Constitution, Trump instructed his buddy, Jerry Jones, to convince other NFL owners to do his bidding.  They willingly complied.

Is there strong evidence that NFL owners have adopted a rule that is not only illegal but also a contradiction to the constitution?  Were Trump and Pence correct to ignore a legitimate union and intercede in (or even incite) a commercial dispute?  Should players find some other time and place to express themselves other than during the national anthem?  Why was Tebow’s protest right but Kaepernick’s protest wrong?

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