Why the NFL Can’t Suspend or Fine Kneelers

There is some debate as to whether the NFL “Operations Manual” has a rule that requires players to stand for the national anthem and face the flag. Let’s assume the answer to that is yes, the rule exists.

Nonetheless, the league faces serious obstacles in trying to enforce such a standard with discipline.

First, the NFL has a meager management rights clause: “Section 3. Management Rights: The NFL Clubs maintain and reserve the right to manage and direct their operations in any manner whatsoever, except as specifically, limited by the provisions of this Agreement.”

There are more than 300 pages of limitations on management’s rights, including Art. 42, Section 2:

That part 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.”

In the underlined text, I am indicating that management must specify in advance of the season the discipline (penalty) for breaking a rule—not just what the rule is. In this sentence, “complete list of discipline” modifies “designated offenses.”

So, at most, the NFL appears to have a flag rule without a disciplinary schedule and required publication notice. The section can only be read to mean that once the pre-season starts, the only enforceable types of discipline are those that are published by the teams.

This reading is reinforced by Article 46, Section 1(d): “(d) The schedule of fines for on-field conduct will be provided to the NFLPA prior to the start of training camp in each season covered under this Agreement. The 2011 schedule of fines, which has been provided to and accepted by the NFLPA, shall serve as the basis of discipline for the infractions indentified on that schedule.”

Kneeling is “on-field conduct”—and since it’s not a specified offense for the 2017 season, at least in terms of having a negotiated disciplinary scale, punishment cannot be administered now without violating the CBA.

Roger Goodell has already taken massive heat for suspending Tom Brady, and less-so with Adrain Peterson (child abuse, excessive punishment) and Ezekiel Elliott (alleged assault of woman). Those are battles he can win in court. He can’t win the “flag battle”—at least, not until new penalties are posted in 2018.
My suggestion? All teams stay in the locker room until after the anthem is played. Sure, this would be criticized, but it de-escalates the conflict-- a lot.