Hope everyone had a very happy 4th of July celebration. I thought this post would be timely for that.
You may recall my prior post about Colin Kaepernick kneeling during the national anthem and my person views on the issue. Following…
On May 22, 2018, the NFL enacted a new national anthem policy requiring all personnel on the field to stand during the national anthem, yet also gave the option for the players and staff to remain in the locker rooms if desired. This new rule came in response to a controversy that is still alive today.
“I am not going to stand up to show pride in a flag for a country that oppresses black people, and people of colour,” Kaepernick said in a press conference after first sitting out during the anthem. “To me, this is bigger than football, and it would be selfish on my part to look the other way. There are bodies in the street, and people getting paid leave, and getting away with murder.”[1]
This is the voice of conviction from former San Francisco 49ers quarterback, Colin Kaepernick. In 2016, Kaepernick ignited a controversy by kneeling for the National Anthem before the start of NFL games. He described his actions to be a silent protest against the racial injustice that has continually been swept under the rug by our very nation.
President Trump and many of his supporters declared that kneeling during the national anthem is disrespectful to American servicemen and women. [2]
After Kaepernick first started the protest, he was criticized for introducing politics into sports. Many said that football was somehow sacrosanct, and that it should be a place where politics were not involved. [3]
The kneeling rule dates back to 1985; during the last two minutes of a half, the play ends when a quarterback kneels or simulates kneeling on the ground. The ball is dead when any runner slides to the ground feet first, thereby declaring himself down.[4]
The new rule, however, came in response to the 32-member clubs of the National Football League reaffirming their strong commitment to work alongside players to strengthen communities and advance social justice. The unique platform that [the league] has created is unprecedented in its scope and will provide extraordinary resources in support of programs to promote positive social change in [our] communities. [5]
The collusion claims brought by Kaepernick and Reid raises two questions. First, is the owner created rule a unilateral implementation of a subject to mandatory bargaining? And second, how successful is the claim when brought in arbitration?
Kaepernick’s lawyer, Mark Geragos, said in a statement, “We can confirm that we filed a grievance under the CBA on behalf of Colin Kaepernick. This was done only after pursuing every possible avenue with all NFL teams and their executives.”[6]
The entire collusion case is a challenge for Kaepernick. It will be extremely difficult to prove that other teams have not hired him because of his outspoken nature, and many teams have already declared that they have not colluded with other members of the league to boycott the quarterback. Furthermore, since the policy will be part of the NFL’s game operations manual, it is thus not subject to collective bargaining, ruining any claim for unilateral implementation of a mandatory subject of bargaining.
Because this new rule was an owner’s manual rule, the policy is not subject to collective bargaining. This loophole seems to pose a problem to federal policy in terms of collective bargaining and looks like a unilateral implementation of a rule. The rules of labor law would require both parties to negotiate and agree to the new rule were it to be implemented in the CBA, however, the clear opposition of the NFLPA to this new rule signals that negotiations would have lead to impasse anyway. This leaves the question; was the new anthem policy a means to increase employer leverage by enacting it in another agreement instead of negotiating it in the CBA? Does this leave room for the NFL to unilaterally act in other areas of the sport? If so, this would diminish the collective bargaining process altogether.
Link to full paper to come.
[1] https://www.independent.co.uk/news/world/americas/us-politics/taking-a-knee-national-anthem-nfl-trump-why-meaning-origins-racism-us-colin-kaepernick-a7966961.html
[2] The White House has repeatedly attempted to rebrand the protest as a protest of the American flag instead of against police brutality and racism in the US.
[3] https://nflcommunications.com/Pages/Statement-From-NFL-Commissioner-Roger-Goodell—-.aspx
[4] www.nfl.com/news/story/0ap1000000224872/printable/evolution-of-the-rules-from-hashmarks-to-crackback-blocks
[5] www.espn.com/nfl/story/_/id/23582533/nfl-owners-approve-new-national-anthem-policy: The new rule in is codified language states that the membership also strongly believes that:
- All team and league personnel on the field shall stand and show respect for the flag and the Anthem.
- The Game Operations Manual will be revised to remove the requirement that all players be on the field for the Anthem.
- Personnel who choose not to stand for the Anthem may stay in the locker room or in a similar location off the field until after the Anthem has been performed.
- A club will be fined by the League if its personnel are on the field and do not stand and show respect for the flag and the Anthem.
- Each club may develop its own work rules, consistent with the above principles, regarding its personnel who do not stand and show respect for the flag and the Anthem.
- The Commissioner will impose appropriate discipline on league personnel who do not stand and show respect for the flag and the Anthem.
[6] https://www.usatoday.com/story/sports/nfl/2017/10/15/colin-kaepernick-collusion-claim-against-nfl-owners/766348001/
