Teams have no legitimate reason to ask players about kneeling

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When the national anthem controversy erupted in 2016 and became an even bigger issue for the league in 2017, the NFL made one point very clear publicly: Players have the right to kneel or otherwise demonstrate during the national anthem. Privately (and at times publicly), some of the NFL’s teams have sent a very different message.

This duality has resulted in a collusion grievance from free-agent quarterback Colin Kaepernick, and a collusion grievance could (in theory) be the path that free-agent safety Eric Reid eventually chooses to follow.

Setting aside personal opinions on whether it’s proper or improper to use the anthem as a mechanism for protest, as a matter of labor and employment law, it’s proper for players to choose to protest during the anthem. Which means that, as a matter of labor and employment law, it’s not proper for the NFL or its teams to hold protesting during the anthem against any player who chooses to protest.

Which also means that there’s no legitimate reason whatsoever for any owner, G.M., or coach to interrogate a potential employee/player on whether he will or won’t kneel. Which means that, if it happens, it’s necessarily illegitimate — no different than asking potential employees about religious beliefs, national origin, and (for female employees, obviously) whether they are or plan to become pregnant.

Again, collusion is just a fancy word for coordination. If the teams have collectively decided, possibly with the league office as the conduit, that players who are most closely identified with kneeling (like Kaepernick and Reid) are bad for business despite the fact that kneeling can’t be prohibited, that’s a problem.

With the Bengals, a team that has routinely provided sanctuary to players with off-field issues, being the ones to pose clearly inappropriate questions to Reid in the apparent hope that he’ll commit clearly and unequivocally to not kneeling before the Bengals will offer him a contract, the problem becomes even more glaring.

With Kaepernick, the NFL’s teams had a chance to fix the problem before it got out of hand. With Reid, the window is still open. Once it closes, however, the NFL could end up with a second player claiming that the league and/or its teams are working in coordination to keep out of football one of the players who have been at the core of the issue of protests during the national anthem.

79 responses to “Teams have no legitimate reason to ask players about kneeling

  1. That’s your opinion. What about the consumers who pay the bills?
    Who might not all be Hollywood/MSM/Liberal Elitist in their views?
    Did you all see the final numbers from last year? Were the NFL games down?

  2. Of course they have a reason. Owners own their teams to make money, not to provide some free service to fans or free platform to activists. If a potential employee’s actions may hurt the ability to make money, they have a very good reason to ask if they intend to engage in that activity.

  3. If an employee or contractors actions impact revenue, they absolutely do have a legitimate reason to ask about all manner of things.

  4. Old Glory is always a legitimate reason to ask. If you disrespect the flag, you don’t deserve the privilege of playing in the NFL. Simple as that.

  5. Of course they have a reason. Owners own their teams to make money, not to provide some free service to fans or free platform to activists.
    ——–
    You mean like the armed services that pay for Patriotism before every game? That kind of special interest? I don’t have a beef with the military. I have had several family member and close friends either serve or are currently serving. Heck we all do. But does our military need to advertise themselves at the start of every football game? It’s not done out of Patriotism. It’s a paid commercial. I’m standing anyway but if someone chose not to I’m not going to get my feathers ruffled up. I’m not going to question their Patriotism. Heck standing up takes no effort. It doesn’t make you a good Patriot.

  6. Wait what? Last time I checked when your employer has certain standards and rules that you are supposed to comply with you either do what’s asked of you or you’re out of a job. Players have no right to protest the anthem while they are at work and wearing the uniform of their teams owners. I was a firefighter for 21 years and we couldn’t use tobacco on or off the job or we would be fired, we also couldn’t drive a vehicle to the station that had ANY type of political candidate’s bumper sticker on it. You have every right to protest ON YOUR OWN TIME, but not while you are on the clock and being paid to do your job.

  7. An employee’s actions causing a drop in in revenue isn’t a legitimate reason for a business? What planet are you on?

    Even though kneeling was meant to bring attention to social injustice, I know a ton of vets who won’t watch football anymore because they take it as a disrespect to the military. Why should an owner not be able to evaluate that when considering hiring someone?

  8. So of the many players that protested during the anthem, only Reid & Kaepernick are being “blackballed”. Even though many that were in the spotlight protesting every week have jobs, have received raises, and/or were hired by other teams…but these two guys are the only ones being blackballed.
    Doesn’t add up, must be another reason.

  9. “Do you plan on kneeling for the National Anthem?” is the same question as “Do you plan on being a huge distraction to the team and your teammates?”

    If fans continue to listen to the NFL talking heads the NFL will become the NBA and everyone will stop watching. Don’t fall for this none scene.

  10. How is it “necessarily illegitimate?” The players are employees that are paid by the owner. At my job, I can’t perform an animal sacrifice in the breakroom & use religious freedom to get out any consequences from that action. This is really no different. The employer has a right to ask a potential employee if they plan on doing activities that are detrimental to the work environment or cause harm to the company’s finances.

  11. How does this compare (or contrast) to something like ESPN firing Kurt Schilling for what he tweets? Legit question. Either case is making a hiring/firing decision based upon free political speech.

  12. Malcolm Jenkins did his protest. He even got his owner involved. They actually took action and went to speak with LEOs and the Philadelphia government.

    Is he being blackballed? No. Granted, he didn’t wear pig socks, but you cant say there is positively collusion when other guys have protested and are seeing absolutely zero backlash.

  13. But it is not collusion if teams have unilaterally decided it is bad for their business. It seems completely plausible that an owner would be worried about the damage to their team’s individual brand from a player kneeling, rather than to the NFL brand as a whole.

    I’m surprised labor and employment law is so clear that NFL teams can’t hold protests against players in employment decisions. Why is that? How does that differ, legally, from holding past drug use or domestic abuse against the players in employment decisions? And if it were the case, why is Kaepernick’s lawsuit on collusion and not an open and shut labor suit?

  14. This hurts… but I agree with the Cowboys fan 100%… Ouch! 🙂

    Eagles Fan

    cowboybillscustoms says:

    April 11, 2018 at 2:40 pm

    Of course they have a reason. Owners own their teams to make money, not to provide some free service to fans or free platform to activists. If a potential employee’s actions may hurt the ability to make money, they have a very good reason to ask if they intend to engage in that activity.

  15. I love how Florio clearly layed out a purely legal argument based on labor law yet every single one of the responses arguing against his finding are based either on personal opinion or anecdotes and no legal basis whatsoever.

  16. Sorry but the owners/teams have every right to ask about the kneeling issue if it is going to be a distraction in the work place and impact business. Instead of making it some big activist thing let’s just strip down all the lawyer talk and call it what it is – it is work place etiquette/work place rules to abide by. Everyone with a job has a certain set of standards/rules they must adhere too. Being a football player is a job plain and simple. These players are expected to act a certain way because their employer pays them to play football not take activist stances. When you strip away the it’s entertainment, its sport and all the other nonsense – it’s a job – there are rules – follow the rules. If you don’t like the rules you can be cut (fired) and do whatever you want. No one is telling these players what to do on their time but when they are on the field they are being played to play football and help make the organization they play for money.

  17. @skullrich… if, in fact, you do know “a ton” of vets that’ve stopped watching, please have one post here.

    If it is that big of an issue, it certainly shouldn’t be difficult to get one to post about the perceived disservice that (in my opinion) a loud vocal minority sees as an an issue it isn’t.

    I’ll wait…

  18. Adding food for thought for the “owners get to do whatever they want because they ware owners.” crowd.

    Would it be OK for them to ask if you lean more DNC or GOP?
    Would it be OK for them to ask if you follow an organized religion?

    Many claim to love freedom but what freedoms do you claim to love? This is very confusing on a philosophical level. It only makes sense on an emotional level. But emotional reactions are quite often irrational once the person calms down and can think rationally for themselves.

  19. Thought Reid said he wouldn’t be kneeling this year,.Not sure why he was bothered by the question if he didnt plan on kneeling.Guy played hard, hope he gets a job somewhere and stays healthy.

  20. Maybe employers want employees (while on the job) to concentrate on what they are being paid to do and not an extra curricular activism

  21. You said that asking about protesting the anthem is “no different than asking potential employees about religious beliefs, national origin, and (for female employees, obviously) whether they are or plan to become pregnant.”

    Since you are a lawyer, you know that all the things you mentioned in the quote above apply to protected classes of individuals. Classes that are treated differently by the courts than whatever class you think anthem-protestors belong in. They are treated differently based on the Supreme Court’s interpretations, over the years, of the Constitutuion. The players aren’t kneeling because of religious beliefs, the country in which they were born, or because they are a specific gender. They are kneeling to bring attention to a social issue. They are not members of a protected class and thus do not compare to the groups you cited.

  22. I don’t understand this logic. NFL is a very public based product, and how a player conducts themselves do matter to things like advertising, which is totally in the interest of a football franchise. I’m a pretty hard core liberal, but you have to have some common sense to these things. You don’t have to like something, and you may make a stand, but you better be willing to take those consequences. This player works for and represents the team he plays for, and the image that team wants to have, if he can’t fit that and the team feels its detrimental, I don’t see the leg to stand on. It is up to the fans to decide at that point if it still wants to support the product if they don’t like how the player is treated.

  23. Let’s look at this from a different point of view. American Flag etiquette states the American Flag CAN NOT be used as an article of clothing (sure see a lot of ‘flag’ t-shirts), an object of display (those 100 yard flags used at the start of each game??), must be kept at a respectful position (does that mean it’s ‘ok’ to ‘wave’ those 100 yard flags to make look like they are in a wind tunnel?).
    So, before we start siding with either side perhaps we need to ask the real question and that is whether the NFL is using the American Flag as a ‘money gimmick’ and not as something to respect.
    Just because someone does or does not stand up during the national anthem does not speak to their patriotism in any way except perhaps the money garnered by the NFL.
    Semper Fi!

  24. They are paying these guys a fortune. Of COURSE they have the right to see if a guy is goning to be a disruptive force

  25. When you put on the team uniform you are representing the team and ownership.

    State and Federal employees can NOT participle in political campaigns during working hours and players should not be able to protest while in uniform if the protest is against the wishes of ownership.

    Do what you want when is street clothes.

  26. If I am the owner of one of these NFL teams, I will decide what is legitimate. It is my franchise the player is paid to represent, and if I disagree with his actions, I do not have to sign him to a contract. He can sign elsewhere.

  27. I will fight until the day I die for businesses to be able to ask about religious beliefs, national origin, and (for female employees, obviously) whether they are or plan to become pregnant.

    I’m a business owner. I don’t want to hire religious people. I don’t want to hire females who are going to get pregnant. I don’t want to hire individuals who come from a culture that widely considers education to be unimportant.

    I guess the moral of the story is that it’s best to punish the few in order to make everyone out there appear to be worth hiring.

    So much for Darwin and his concepts.

  28. A bunch of whine bags. You have a job and like it or not as soon as you walk in that stadium you punched the time clock and you are on your Employers time and like any job, your Employer has rules to follow.

  29. Wrong, this is about behaviors not beliefs. This is more like asking somebody if they are going to urinate on the Bible or if they’re going to have sex on the counter during working hours.

  30. wlubake says:
    April 11, 2018 at 3:04 pm

    How does this compare (or contrast) to something like ESPN firing Kurt Schilling for what he tweets? Legit question. Either case is making a hiring/firing decision based upon free political speech.
    ———————————————————————————-
    Completely different. The NFL players are doing their form of protest AT THEIR WORKPLACE not twitter. The whole problem with the kneeling is the venue, not the message. The players knew beforehand what kneeling during the national anthem would do. It is intentional.

  31. In the words of Donald Trump…..”Wrong!”

    If an employee’s actions are going to have a potential negative impact on a business’s revenue, that employer has every right to ask about that. Kneelers are NOT a protected class of people according to any Supreme Court case I’ve read.

  32. boondockstlrssaint says:
    April 11, 2018 at 3:12 pm

    @skullrich… if, in fact, you do know “a ton” of vets that’ve stopped watching, please have one post here.

    If it is that big of an issue, it certainly shouldn’t be difficult to get one to post about the perceived disservice that (in my opinion) a loud vocal minority sees as an an issue it isn’t.

    I’ll wait…
    ———————————————————-
    I am a vet (1968-1975). I have not watched ONE NFL game nor spent one dime on anything NFL since Kaep chose to kneel. That is my personal choice, as was Kaep’s choice to kneel. Mine has repercussions in that I miss my favorite teams games and my grandkids do not get NFL jerseys any more. His are to no longer play football.

    PS: as a member of the VFW and American Legion, I know a “ton” of vets who no longer watch football nor follow the NFL. Why don’t you attend a VFW meeting and ask the bonafide vets there how they feel instead of bloviating about a subject you know nothing about, ie: veterans and their feelings

  33. Why would teams collude against a player? Collectively for all teams it may be best to avoid an individual player, but for individual teams it is actually in their best interest to have distractions hired by the competitors.

  34. The reason they ask the questions to players interviewing is to see if the player is trust worthy or will leak the info. Teams are top secret when it comes to locker room talk. This is just a test to see if they can trust the player.

  35. “Teams have no legitimate reason to ask players about kneeling.”

    Um, yes they do. While on the field, these players are wearing a uniform of the franchise, and are being paid by the owner. As such, the owner has every right to know how his employees are going to conduct themselves while they represent the owner’s brand. If the owner believes that a player kneeling during the national anthem is going to negatively effect his business, he has every right to decide against signing that player.

  36. Oh, and as a vet I can safely say Kaeps protest had jack to do with the military. That narrative is old. Kaepernick protested police brutality. In case you live under a hole, this country has seen how many damn videos of x cop straight up murdering a guy who clearly isn’t resisting, and is rightfully TERRIFIED. There’s a REASON why black people are terrified of cops.

    Ever hear of the phrase, “Getting away with murder”? That is literally the outcome every single time. Every single time, they even keep their jobs. Every single time. I’m not black …. OR BLIND. But yes, I’m sure Kaepernick is just a flag burning, military hater. That dude has heart AND BALLS. He is a Patriot and I for one salute him.

  37. “No one is even giving Reid a look! Not even a visit! [Outrage]”

    (Reid visits Bengals)

    “They have no right to ‘interrogate*’ a player about this!”

    1. Are we sure they even asked him about it?
    2. No accounts say he was “interrogated.”
    3. It’s not good to cut off your nose to spite your face. Or your employer. But it is good for SJW’s. They love that.

  38. Funny, but private employers have every right and need to consider the actions their employees take. We have seen, time-and-time-again, what happens to companies when some employee does something that raises the ire of the public.

  39. factschecker says:
    April 11, 2018 at 3:15 pm
    Adding food for thought for the “owners get to do whatever they want because they ware owners.” crowd.

    Would it be OK for them to ask if you lean more DNC or GOP?
    Would it be OK for them to ask if you follow an organized religion?

    —————–

    If they are planning on having a political event at the stadium before, during or after the game….yes.

    If they are planning on performing a religious ceremony at the stadium before, during or after the game….yes.

    The owner is not asking Reid his political beliefs…he is asking him whether or not he plans to express them while on the job at the stadium.

  40. Freedom of speech does not apply while you on your job. You have to follow your company codes of conduct. Most if not all companies prohibit employees from expressing political point of view during work.
    For professional athletics, you can kneel as long as you want at home, or on street during the off-seasons.

  41. @factschecker, they are not asking anything illegal by any stretch of Equal Opportunity laws. This is an entertainment business, they make their money by people watching their product (on tv or at stadium), they are not about to give another reason for their audience to turn the channel so they lose revenue.

    If you owned a business and had t-shirts with the company logo of a circle on it, would you hire someone that told you he wasn’t going to wear it because he doesn’t like it or is offended by it or he is going to wear it when making questionable social videos?

  42. You can argue the right and wrong of this all day every day, but yes, they have a legitimate reason to ask.

  43. Actually this is America. You should stand and be proud. In another country you would be booed possibly even attacked for doing such a thing. You wanna be an idiot you have to be prepared for all that comes with it.

    Reid talent doesn’t outweigh his mouth or drama otherwise he would be signed already, let’s be real.

  44. So Reid uses his first opportunity for a job to take his best shot at setting up the Bengals for a lawsuit. Nice. Mark my words, he will not get another invite!

  45. Conduct detrimental to the team is stated pretty clearly in the rules. The reputation of the NFL has been tarnished whether one agrees with the protests or not. Alienating a significant percentage of the fan base is detrimental to the league no matter the cause.

    “Conduct that undermines or puts at risk the integrity and reputation of the
    NFL, NFL clubs, or NFL players.”

  46. There is not a single person who has the “Right” to protest while on company time and employed by a privately owned company. PERIOD. So yes there is a legitimate reason. Legally their owners can tell them they can’t do it and they can’t do it. The protests caused the NFL to lose millions and millions, but the players contracts were not affected. They have the absolute right to inquire whether that player may potentially cause them as an owner revenue in the form of protests, and then hire them, or not, based on the result of that answer as they see fit.

  47. I agree that anyone can ask whatever they want, just like most posters can be as closed minded and/or racist as they want. It takes a great amount of courage to go against the norm and do it peacefully unlike so many other people that protest by hurting innocent kids at schools or bars or concerts.

  48. If a player who intends to kneel has the potential to negatively impact the team’s profits through attendance and backlash from advertisers, the team in fact does have the same right to probe intent as they do alcohol or drug usage, domestic battery etc. The NFL is not a philanthropic endeavor catering to the SJWs and their sympathizers.

    Taking that a step further, if I were an owner I’d have my lawyers write specific stipulations into the contract that prohibits and penalizes any actions or activities that can reflect poorly on the team. If a player doesn’t want to sign it, then he’s not for that team.

  49. Every work place has rules and ways to act working at these businesses. NFL players don’t get they are employed and are expected to act in a certain matter. If you don’t like it on the outside you look for a new job exactly how many NFL players do this.

  50. Lawyers have ruined this country.

    You can barely ask anything in an interview, in CA can’t ask salary history, you don’t hire someone your get served with a lawsuit claiming age discrimination and god help you if you have an underperforming employee…you’ll need a pile of write ups and counseling forms if you dare fire them.

  51. Keep the players in the locker room during the anthem. Problem solved. You can’t force players to stand. It’s not in their contract or the collective bargaining agreement.

  52. Taking the knee was never about dishonouring America
    it was about the injustices blacks face everyday of the lives
    It was the racists, including Trump, who made it about the flag
    When I see congressmen and senators sitting during the national anthem
    when I see people milling about and ignoring the national anthem at games
    all of america should be held to account, not just the few blackmen who had the courage to stand up for what is right and what is guaranteed to them in the constitution

  53. The right wing coopted the players message, and made their kneeling more about disrespecting the flag to avoid their real message, which was about unarmed black men shot and killed by police. This is what a society does when they want to ignore the plights people who are disenfranchised. If you’re a minority, and not gifted at athletics, or you’re one of a few fortunate enough to gain a great education, that flag stands for oppression.

  54. Teams do have the right as the players are representing the teams while on the job and in uniform. They’re representing the team and if the customers don’t like it and boycott the team and or the league they’re within their rights to not hire someone that won’t adhere to company policy.

  55. All those who say that an employer can’t do this or that, obviously haven’t had a real job in awhile…..

  56. skawh says:
    April 11, 2018 at 7:24 pm
    The right wing coopted the players message, and made their kneeling more about disrespecting the flag to avoid their real message, which was about unarmed black men shot and killed by police. This is what a society does when they want to ignore the plights people who are disenfranchised. If you’re a minority, and not gifted at athletics, or you’re one of a few fortunate enough to gain a great education, that flag stands for oppression
    ——————————————————–
    You need to travel overseas and see real oppression and understand why people of all races risk life and limb to come over here. If you truly believe what you wrote I feel sorry for you.

  57. USMC Vet here, I’m also a combat vet, NCO 0861. I fully support the players exercising their first amendment rights. Nice to see celebrities standing up for justice and trying to raise awareness of a very real issue and problem in our society. Flags are inanimate objects, cloth and sticking. They are not significant, my oath was to the constitution of the United States, not to a flag. You all go full crazy for a flag, yet are willing to subvert our constitutional rights to appease an employer? WTH?

    I see so many emotional, faux-patriot messages here. Amazing to me how quickly you all deflect to the owners prerogative, thinking your rights should be placed on hold when you go to work. Talk about willing slaves. Without the players, the owners have no viable product, put useful talent on the field and what do you get? A bankrupt league. Painting the picture as though the players are beholden to owners for a platform is garbage, the players are there based upon talent, merit and ability to play better than most.

    Football players get played to play football, not to display someone else idea of patriotism. Free speech, liberty, are much more important than flags. I suspect closet racism and plantation mentalities are the underlying cause of your outrage. You just can’t stand it that they are making piles of money for football and have a bigger platform than you, you want them to shut up and play ball, you don’t care about their issue, but instead of saying that, you wrap it all is some phoney patriotism and rage like dimwits.

  58. The legal argument in the article is not .correct. Its confusing constitutional rights with workplace rulesand where each applies. Labor laws dont even come into it. The NFL and teams have every right to dictate behavior to a player wearing their uniforms at their events collecting their paychecks. And you want it to be that way too. The people making wishful arguments that players have a free right to demonstrate their own personal politics are only thinking of politics they like. But think of another example, imagine if some player pops a nazi salute out there one day because that happens to be his personal politics. I would not want that to be his free right, I would want him pulled off the field and thrown out of football. So think it through folks and be careful what you wish for.

  59. Actually, teams have every right to ask about players kneeling or any other protests players want to do while being on the clock.

    Players have a great platform due to the sports popularity, but that does not give them the right to protest during the games. At that time, they are no longer representing themselves. They are representing the team they play for and the NFL.

    I was in the Navy and am a huge supporter of anybody demonstrating their freedom of speech (whether I agree with the cause or not), but with that in mind, employees of any company do not have the right to protest while representing the company they work for.

  60. frickinfrack says:

    April 12, 2018 at 9:55 am

    USMC Vet here, I’m also a combat vet, NCO 0861. I fully support the players exercising their first amendment rights. Nice to see celebrities standing up for justice and trying to raise awareness of a very real issue and problem in our society. Flags are inanimate objects, cloth and sticking. They are not significant, my oath was to the constitution of the United States, not to a flag. You all go full crazy for a flag, yet are willing to subvert our constitutional rights to appease an employer? WTH?
    —————————-
    Do you protest at your job??? No I didn’t think so!

  61. Politically protected speech is allowed on one’s personal time and not required to be tolerated on company time, and while a player may be given permission by the NFL which is an association of owners, it is not the employing entity which is the team. So the team is the employer and can then set the terms for whether standing or kneeling.

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