As many readers know, the issue of player protests during the national anthem has hovered over the National Football League (NFL) since 2016. Two weeks ago, in an effort to refocus coverage on the sport rather than the spectacle, the NFL unveiled its new national anthem policy, which will take effect this season.
The policy gives players the option to remain in the locker room during the anthem. Players that take the field must “stand and show respect for the flag and the anthem.” A player who protests during the anthem while on the field may be subject to discipline by their team (depending on team-specific policy), and the team itself will be fined by the NFL. The NFL Players Association (NFLPA) has since accused the NFL of failing to consult with it before creating its new rule, and has threatened to take legal action.
This controversy begs at least three employment-law questions. First, are player protests protected under the National Labor Relations Act (NLRA)? Second, does the parties’ collective bargaining agreement (CBA) permit the NFL to create a new policy unilaterally? Third, is the policy valid under the National Labor Relations Board’s (NLRB) standard for reviewing employer policies?
Are Player Protests Protected Concerted Activity?
Since being enacted in 1935, the NLRA establishes the right to bargain collectively. Specifically, Section 7 of the Act states, in relevant part, that “employees shall have the right . . . to engage in  concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
Whether the players’ protests are covered under the phrase “other concerted activities for the purposes of . . . mutual aid or protection” may become an issue. Given that the protests are, by their nature, intended to be part of a broader social conversation – and not specific to their work as football players – one would reasonably expect the NFL, if challenged, to argue that the protests are not concerted employment-related activity.
Unilateral Modifications to a CBA
The NLRA also grants employees the right to bargain collectively. Section 8(d) of the NLRA requires employers, during collective bargaining, to “meet at reasonable times and confer in good faith” with employee representatives about “wages, hours, and other terms and conditions of employment, or the negotiation of an agreement or any question arising thereunder.” The NLRA also states that in cases in which there are already collective bargaining agreements in effect, “the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify” the contract without adhering to a specific process for modification and/or termination.
Therefore, the resolution of a dispute between the Players’ Association and the League will largely depend on (i) whether player conduct during the pre-game anthem performance is a “term and condition of employment,” and (ii) whether the CBA’s process for modifying employment policies was appropriately followed.
Evaluating the Validity of Employer Policies
In The Boeing Co., a case we previously discussed from December 2017, the NLRB clarified the current standard for evaluating the validity of employer policies. Under Boeing, employment policies are valid unless they interfere with the NLRA-established rights (presuming that the policy is reasonably interpreted), and the interference with those rights outweighs any legitimate reason(s) the employer had for enacting the policy.
Given the hot-button nature of this topic, it would not be surprising to see the NFLPA and the NFL litigate this matter the near future.
Kollman & Saucier acknowledges and appreciates the significant work that law student intern, Yitzchak Besser, put into preparing this blog post.