Tuesday’s telephonic press conference featuring Commissioner Roger Goodell included a potentially significant comment from NFL executive V.P. of football operations Troy Vincent regarding the possibility that some players may sit out Week One (or any week) as part of the protests against social injustice and systemic racism. It’s a comment that the NFL could eventually regret.
"[T]hey all have a choice, an individual choice and right to either sit out or protest, however one would characterize it,” Vincent said. “My personal discussions with the players have been many and frankly with the club ownership and coaches, but in particular the players, and it’s really time for us to dig into when we talk about police reform and it’s really around the area of accountability, and how can we leverage from our office -- our governmental affairs office. The players want to see us leveraging the influence to hold officers that are bad officers to be held accountable.”
By saying players have the “right to either sit out or protest,” Vincent paints with a broad brush that could paint the league into a legal corner. Although the decision of various NBA teams to skip games last Wednesday and Thursday was called a “boycott,” it was in reality a wildcat strike. Otherwise known as, in most cases, an illegal strike.
The NFL’s Collective Bargaining Agreement contains, as most if not every CBA ever negotiated does, a provision preventing lockouts and strikes during the term of the agreement. Only under the most specific circumstances can players launch a strike before a CBA has expired. It would be very difficult if not entirely impossible to justify a wildcat strike based on social justice issues completely unrelated to the game.
Although I haven’t researched (that’s a lawyer’s way of saying “I don’t know”) whether comments from a league executive excusing before the fact a wildcat strike that hasn’t happened yet, Vincent’s remarks will make it harder for the league to prevail in court in the event players refuse to work and, in turn, the league loses tens if not hundreds of millions in revenue. Of course, it’s unclear whether the NFL would sue to stop a wildcat strike or to recover from the NFL Players Association the financial losses flowing from a wildcat strike over social justice issues. From a P.R. and employee relations standpoint, the NFL may not pursue that option.
Vincent’s comments also make even more pronounced the divide between the league office, which seems to now be saying that it’s fine for players not only to kneel during the anthem before a game but also to not even show up for the game, and the Cowboys, who still seem to be intent on cajoling players into standing for the anthem. The next discrepancy between the NFL and the Cowboys (along with other teams) could flow from the league office’s recognition that players have the right to strike over social justice and the belief by the teams that the players must honor both the CBA and their individual contracts.