The Law on Protesting at Work

This will be short and to the point. To summarize: Players have very substantial but not absolute legal protections to kneel during the national anthem

First, NFL players have no First Amendment right to take a knee. They work for a private employer. The Constitution is a limit on government. Donald Trump can’t fire kneelers.

Second, several states have the equivalent version of First Amendment rights for private sector employees. California has a broadly worded “labor code” that protects political activities and speech. It’s so broad that an employer would have difficulty firing an employee for marching with the KKK—and it certainly would offer legal protection to players on the Raiders, Chargers, Rams and 49’ers. That’s one-eighth of the league.

Colorado, Washington, and Minnesota have similar laws, adding three more teams (Broncos,  Seahawks, and Vikings) to the list of protected athletes.

Third, all NFL players are covered by a collective bargaining agreement. Players could be fined, suspended or fired for “just cause.” A key provision of just cause is whether an employer rule is “reasonable.” Let’s say, for argument, that an NFL team could make that case. The team would still be constrained.

Article 42, Section 2 says: “Section 2. Published Lists: (a) All Clubs must publish and make available to all players at the commencement of preseason training camp a complete list of the discipline that can be imposed for both designated offenses within the limits set by the maximum schedule referred to in Section 1 above and for other violations of reasonable Club rules.”

That means if a team wants to establish a no-kneeling rule, it would need to publish the rule in mid- to late-July, when training camp starts.