Labor Law Could Protect Protesting NFL Players from Discipline by Owners and League

By Sahid Fawaz

Do protesting NFL players have an ally in labor law? It’s very possible.

The New York Times reports:

“As National Football League team owners consider President Trump’s call to fire players who refuse to stand for the national anthem, they have stumbled into one of the most consequential debates in today’s workplace: How far can workers go in banding together to address problems related to their employment?

In principle, the answer in the N.F.L. and elsewhere may be: Quite far.

To the extent that most people think about the reach of federal labor law, they probably imagine a union context — like organizing workers, or bargaining as a group across the table from management.

As it happens, the law is much more expansive, protecting any “concerted activities” that employees engage in to support one another in the workplace, whether or not a union is involved. The National Labor Relations Board and the courts have defined such activity to include everything from airing complaints about one’s boss through social media to publicly supporting political causes that have some bearing on one’s work life.

The league’s operations manual says players must be on the sidelines during the anthem and should stand. While the law might not bear on whether an individual player can kneel during the anthem, many experts say it could protect players from repercussions for making such a gesture together — or taking other action — to show solidarity on the job.

And as unionization continues its decades-long decline, some believe that these alternative forms of taking collective action may be crucial to enabling workers to speak up.

‘Workers without a traditional organization that is meant to protect them at work are kind of scrambling around for new ways of protecting themselves,’ said Benjamin Sachs, a labor law professor at Harvard University. ‘It does feel like these are nascent forms of something new.’

To be protected under federal labor law, an employee’s action must be conducted in concert with co-workers, it must address an issue of relevance to their job, and it must be carried out using appropriate means. Workers can’t, say, damage property or threaten violence. (If the workers have a collective bargaining agreement with their employer that forbids certain actions — like striking — they can’t do that, either.)

Many experts believe that some of the recent protests by N.F.L. players meet all three conditions, and that as a result, their teams cannot discipline or fire them for taking part.

These experts point to a 1978 case in which the Supreme Court ruled that workers have a right to engage in political advocacy as long as the political theme relates to their job. In 2008, the general counsel of the National Labor Relations Board, which enforces federal labor law, issued a guidance making clear that workers had a right to publicly demonstrate for or against immigration legislation pending in Congress, though they didn’t have the right to skip work to do so.

More recently, the Obama-era labor board appeared to bless a relatively informal definition of the term “concerted activities,” so that spontaneous banter, and not just well-orchestrated action like a formal protest, could qualify as protected.

For example, the board ruled that two employees of a sports bar had been improperly fired after one complained on Facebook that their boss had mishandled their tax withholdings and another ‘liked’ a former employee’s Facebook complaint. In another case, the board ruled that an employer couldn’t fire five workers who had gone on Facebook to object to criticism of their work by a sixth employee.

Together, said Matthew Bodie, a law professor at St. Louis University who is a former attorney for the labor board, these precedents suggest that federal labor law would most likely protect collective protests of the president’s argument that players should be fired over political gestures — or his suggestion that league rules designed to protect players from debilitating injury are too strict.”

For the rest of the piece – and it’s a great read – check out the story at The New York Times here.

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