Reactions to Colin Kaepernick Kneeling During the National Anthem

2464 words (10 pages) Essay in Sports Law

05/08/19 Sports Law Reference this

Last modified: 05/08/19 Author: Law student

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Abstract

Human rights is a tricky topic in today’s world. Society is more sensitive to different issues and blow a small issue out of proportion. Anything now a days is put on social media, the news and newspapers. With that being done everything spreads like a wild fire. Aside from their basic constitution rights, NFL players have rights described in a CBA, which stands for Collective Bargain Agreement. The issue is that players have the right to stand or not to stand for the national anthem based on their personal beliefs or preference. This is a tricky situation because the NFL makes the rules within their organization. They had come up with a new policy that lets players not stand for the anthem, but they can not be on the field at the time or teams will get fined. My topic is the negotiation between two parties, the NFL and the NFLPA, due to the recent issue of lawsuits being filed over the national anthem protest. My goal is to layout how both parties acted in these situations, how the audiences responded, and the end result.

Main Body

Do you remember when the NFL in the news in 2016 and the reason why? If not let me enlighten you. Colin Kaepernick, from the 49er’s, was fed up with African American police shootings happening around the country that he was the first player to kneel during the national anthem. He said, “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color.” It is his right as a free citizen to kneel during the anthem. It is not the coaches right to tell him not to do something or the team. Kaepernick used his high-profile status to take a stand for an issue to raise awareness. In result, he had upset so many people in our country. That is what lead to his NFL career to end.

The NFL responded to Kaepernick’s actions by releasing a statement saying, “players were encouraged, but not required, to stand for the anthem.” Until this point, no one has ever kneeled during the national anthem in the NFL. Once Kaepernick became a free agent, no NFL team in the league wanted to sign him due to his reputation ruining the team’s image. Even though the NFL is a sport, it is also a major corporation. From a business perspective the teams were not willing to risk lost revenue at games, tv ads, and apparel sales. At the time, President Trump did not help the situation any better for Kaepernick. Do to his tweets the NFL takes his tweets as a matter of him downgrading the NFL and how they operate. Therefore, owners are acting in a way that won’t piss off President Trump just because he has so much power to influence millions of people. This then led to another tweet by President Trump. Everyone has their own opinion regarding this protest due to the matter of it being the American flag.  This then led to a defiance act against Trump with players from all 28 teams kneeling and coaches, as well to show that President Trump doesn’t have the power to control them.   Kaepernick has made his action a nationwide effect known as the “Kaepernick Effect”. Players kneeling has spread across all sports and leagues within the country from high school games all the way up to the pro leagues.

Tuesday, July 10th the NFLPA had filed a grievance lawsuit on behalf of all the NFL players. This lawsuit was filed due to the NFL imposing a new national anthem policy. An arbitrator will be appointed to review the lawsuit filed by the NFLPA and come to a decision without going to court. Players could then pursue to file other lawsuits under certain state laws making this issue so much more complicated in court involving many other federal agencies. If the NFL had negotiated from the beginning with the NFLPA no lawsuit would have been filed because they would have come to a mutual agreement. If they negotiated and still didn’t come to a decision, then the arbitrator is the last resort.  I believe the NFL filed the policy because they were short on time, losing a bunch of money because viewers were not watching games anymore and companies were not paying for ads on the NFL network. I remember reading that a company CEO pulled the plug with advertisements on the NFL network and that the NFL lost millions in revenue just from that one company. President Trump also had comments regarding the issue, but it was his opinion and did not affect the influence of the NFL in any way. There is no way to prove that President Trump’s comments are what led to the downfall in the NFL’s revenues and so on regarding the protest. With that being said, the owners of these teams have read the comments of President Trump and are pressured to keep Kaepernick out of the NFL. Kaepernick believes that could have been one reason as to why he was kicked out of the NFL. The strategy Kaepernick used in filing the suit was through grievance, as discussed earlier. His belief that all the owners of every team colluded with each other to keep him out of the NFL gave way for him to use this tactic.

            The parties involved in the lawsuit are the players of the NFL who are kneeling during then anthem, their lawyers, NFL fans, family and friend of the players, the president of the United States, the NFL, and the NFLPA. The players are the ones who told their lawyers to file the lawsuit against the NFL. As an audience, the NFLPA wants to challenge the new policy that has been put in place. The President has, also, had many comments regarding the protest just because he is the commander and chief of the United States and he swore under oath to serve to protect the American flag. It is for all the branches of government, military and civilians. It is for those who are upset, mad, angry, and disgusted that Kaepernick disrespected the flag during the sport we call America’s greatest game. Families of the players are concerned because if the player ends up getting kicked off the team, he will not have income to support his family.  Anyone who is patriotic and involved in any sport is your audience for this negotiation lawsuit.

            Each parties BATNA’s are described as what they’re wanting out of the agreement. Kaepernick is just wanting to get re-hired on an NFL team. He is not wanting to take any less than that. If he gets hired I’m sure he’ll be fine with sitting in the locker room as long as he’s re hired because as of this moment when he’s not endorsed by companies he is not making money.   As for the NFL, they want to have a policy that keeps the players off the field while protesting for the national anthem. And if they disobey owners rules/league rules then consequence need to be taken. If players are on the field protesting it makes the NFL look bad and at the end of the day, it’s a business and they’re losing money. The NFLPA wants players to not be punished by the teams for protesting and for them to express their first amendment right. They have the strong point, so they may get more than what they’re asking for. Which is a good thing. At this point the parties are trying to come to a mutual agreement between all the issues so everybody wins but as well as other consequences taking place.

The new NFL policy removes the requirement for players to stand on the field while the Anthem plays. It also adds that the players on the field must stand and show respect for the flag. Another policy included is that it authorizes the league to fine teams whose players violate the policy. It also gives the teams the power to enforce its own rules regarding the anthem in addition to the NFL’s policy. This policy keeps the NFL from not directly punishing the players but to punish the teams who hire/employ these players. Having this policy in affect is setting a precedent on teams not wanting to sign players who may protest. This goes back to what I said earlier about possibly ruining the reputation of the team/franchise. Some owners in the league have volunteered to pay for the fines of the players protesting but others have not, and I don’t blame them, that is a lot of money.

            This negation comes down to the NFL making this decision unilateral and not including the NFLPA in the decision. The NFL is in a weak position just because they came up with a policy without the NFLPA’s approval and has wording that is contradictory to the CBA and the original NFL’s anthem policy. This did not sit too well with the NFLPA.  They had expressed their concern that the NFL did not include them in the decision and that the NFLPA will review and challenge the policy if it violates the collective bargain agreement. The CBA contains the rules and regulations the player must follow and the league. The NFLPA is challenging the clauses by stating, “(1) players who choose to be on the field prior to games must stand during the anthem;” (2) the NFL can punish teams whose players “are on the field and do not stand and show respect for the flag and the anthem;” and (3) teams can “develop” their own rules to punish offending players.” The NFLPA has referenced the manual which stands for “game operations manual”. This manual describes how the league should operate their teams within the game. This manual includes the national anthem policy that says the anthem “must be played prior to every NFL game, and all players must be on the sideline for the National Anthem. It also says the players “should” stand and that it does not say the “must” stand. The simple change in the wording could be the win the NFLPA is needing to make the new policy go away. This is the strong point that the NFL players have. How the wording is typed could possibly be the one thing that dismisses this lawsuit without question.

Team punishments can be enforced based on Article 42 of the CBA. They can enforce a four-game suspension, a fine up to 4 weeks’ pay for” conduct detrimental to the club”. This means that if the club feels that the players actions is affecting the club itself, then the club has the right to let that player go without question.  This is just the minimum consequence these players could face. At worst the player could be let go no matter what the contract says. Players can then challenge Article 43 that states a player cannot be punished for expressing its first amendment right by protesting. Punishment for protesting is not stated in the CBA or in the players contract.  If this lawsuit kept going then the NFLPA would file a lawsuit to the National Labors Relation Board because a team was punishing that player for protesting found in Article 7. The NFLPA could then file a lawsuit to the Equal Employment Opportunity Commission is race was a factor in the punishment of a player. All these organizations are what was mentioned earlier about this lawsuit becoming a lawsuit between multiple federal agencies and courts. That is why they are going through an arbitrator because it’s cheaper and quick to the point with a decision and most of all a final decision. Overall this lawsuit is not an easy task just because there are so many loop holes with each issue, each party is expressing. If one party says one thing then the other party has a reason as to why that won’t work or is illegal based on contracts and many different laws within the organization and on a federal level.

Conclusion

The NFL has put the new anthem policy on hold due to the result of the whole Miami dolphins team kneeling during the national anthem on the field. Therefore, in the NFL policy they could have suspended every player on that team for four games. Which would’ve resulted in no games for them or the other team and more lost revenue for the NFL. The players have found their loophole and power they hold within this negotiation. After the teams kneeling between the Houston Texans and Miami Dolphins, and the meeting with the NFL shareholders the NFL has agreed to put the policy on hold. The NFL and NFLPA released a statement saying they are talking things out to find a peaceful and agreeable compromise. The NFL is not expected to release the new policy during this 2018 season. As of this moment there has been a stand still with the policy and negotiation until both parties agree on something to move forward regarding the anthem policy that is going to go in affect. In an end result the NFL is back to where they started with the grievance lawsuits.

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