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Thursday, July 19, 2018

NFL and NFLPA enter standstill agreement on anthem policy (Updates)

Thursday saw sudden activity on the NFL's anthem policy. Late in the afternoon, reports revealed a "discipline schedule" submitted by the Miami Dolphins to the NFL listing improper anthem conduct (i.e., not standing at attention) as conduct detrimental to the club that could be punished by up to a four-week suspension. The Dolphins and the league quickly backtracked, insisting that this was a routine document that every team had to submit prior to the start of training camp and that the team had not decided if or how to punish protests, but that it "has no intention of suspending a player for four games based on any type of anthem protest."

Late in the evening, the NFL and NFL jointly announced a "standstill agreement" on the league policy and the union grievance (filed last week). The league will not issue or enforce new regulations, the union will stay its grievance, and the sides will continue ongoing confidential discussions. I agree with Deadspin that this is another example of the NFL's incompetence and inability to get out of its own way on this issue--it pushed the policy through as a display of muscle at a time when the issue had mostly dropped off the radar, then abandoned that policy in the face of the grievance and the bad press the Dolphins received this afternoon.

At least the President will have something new to tweet about tomorrow morning. [Update: It took a day longer than I expected, but the tweet that arrived had the advantage of blatant lies about the content of NFL player contracts. And I like the response of NFLPA President Eric Winston] (Actually, it would be nice to spin a conspiracy that the NFL and the owners have taken this self-inflicted wound as an intentional wag-the-dog move to help the President avoid the continued fallout of his meeting with Putin).

I will close on a serious question underlying all of this: Could a public employer require its employees to recite the Pledge or sing the anthem at the start of each day, as part of the job? Janus suggests that the limits on public-employee speech (in which speech that is part of the job cannot form the basis for a First Amendment claim) do not apply to rules compelling employees to speak as part of their job. But does that hold outside of union fees? There is an argument that an employer (even one bound by First Amendment doctrine) can control its employees' speech. But is that equally true for an employer seeking to compel its employees' speech?

Second Update: Conor Friedersdorf of the The Atlantic urges NFL players to square the circle--continue protesting while not playing into Trump's hands. The problem is that the anthem remains their most visible expressive platform. If any flag- or anthem-related protest will be demagogued by this President, as surely will be the case, I am not sure what the players can do.

Posted by Howard Wasserman on July 19, 2018 at 11:17 PM in First Amendment, Howard Wasserman, Sports | Permalink


I don't understand why Janus is a strange case. Could a city require its employees join a particular political party? The argument is that unions are in effect political parties since their purpose, to advocate terms of public employment, is inherently a political activity.

As to the OP, joining a union is NOT part of the employees' job, unless you consider joining any political party to be.

Posted by: Biff | Jul 22, 2018 4:25:52 PM

Football players are compelled to wear uniforms, sometimes with Susan-Komen-pink when the League thinks that might improve female viewership. Professional athletes are, at the core, entertainers and what they are permitted or compelled to say (as players anyhow) is a matter of negotiation. Who would hire a one-hit-wonder band to perform without insisting they play their hit song, or want a lower price without it?

Janus dealt with public employees and a union that has legally-created right to exclusive representation, an entirely different scenario.

Posted by: M. Rad. | Jul 20, 2018 10:05:32 PM

Well, can school teachers get an exemption from reciting the pledge? Janus is a strange case, but presumably employers can still compel speech when it is clearly in their role as employees. A police department can insist their employees give Miranda warnings even if they won't to, but maybe they cannot stop said employees from criticizing the Miranda rule on their spare time.

Posted by: Jr | Jul 20, 2018 2:08:41 PM

Interesting , but the real issue in such case , is not whether compelling free speech and controlling free speech by employer , are equal . But , should be discussed on merits . And what is it ?? The answer is :

The anthem and its meaning and implication generally speaking . Now , I quote from the memo agreed on both sides :

The NFL and NFLPA reflect the great values of America, which are repeatedly demonstrated by the many players doing extraordinary work in communities across our country to promote equality, fairness and justice.

End of quotation :

That is to say , that both sides , assert and agree , that they are committed by essence to public concerns and issues of such , means actually , the greater good , and not only bound by narrow sportive and labor issues ( like : fairness , justice , equality , work for communities…) . As such , one should wonder :

The anthem , typically , the utmost common public and national symbol ,also typically , beyond debate and ideological dialectic , wouldn't be agreed as one of the utmost issues closely related and associated with the broader and greater good ?? Both side agree on it . The greater good , is an issue here !! And the employer , and players , both agree that they are committed to issues then of free speech as result then ( whether restricting it , whether compelling it or whatsoever ) .

So , the formula or tension is clear :

Anthem and public concerns V. free speech . This is a hell of an issue , one employer needs to deal with sometimes .It is just , that here , agreed in advance . Not to forget , those players , the league itself are also , model for admiration for too many children for example. One should seriously consider it . Disrespect to the national anthem , even passive one , has a meaning , and even national as such .


Posted by: El roam | Jul 20, 2018 7:29:58 AM

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