Three weeks ago, the NFL changed its anthem policy without input from or discussion with the NFL Players Association. And the NFLPA is preparing for a potential legal fight over the change.
Per a source with knowledge of the situation, the NFLPA has retained multiple law firms to research the options for fighting the new policy, which mandates all players in the playing area to stand for the anthem, and which requires any player who would protest the anthem to remain in the locker room.
One potential challenge would come in the form of a “non-injury grievance” under the Collective Bargaining Agreement. The deadline for filing the grievance would come in late July, and the argument would be that the NFL failed to engage in good-faith bargaining with the union before taking away a right that the NFL had previously given to the players, and that the NFL had confirmed on multiple occasions.
The league gave players the right to protest in 2009, via a poorly-drafted policy that requires the players to be present on the sideline for the anthem but that makes standing optional. In 2016, the NFL confirmed that players are not required to stand after Colin Kaepernick was first spotted sitting during the anthem. In 2017, the NFL once again told players that they would have the right to protest, after the President said that he’d like to see an NFL owner respond to an anthem protest by saying, “Get that son of a bitch off the field, he’s fired!”
Other forms of litigation are possible, including an action based on both the U.S. and various state constitutions premised on First Amendment rights to freedom of expression.
However it plays out, the NFL’s effort to placate the President and his base backfired badly, and it has put the NFL in line for a fight with the union that the NFL possibly will lose.