Union Rights Were the Difference Between NFL Players Kneeling for the Anthem and Bowing to Trump

Kathy Wilkes

Members of the Detroit Lions take a knee during the playing of the national anthem prior to the start of the game against the Atlanta Falcons at Ford Field on September 24, 2017 in Detroit, Michigan. (Photo by Rey Del Rio/Getty Images)

At a Sep­tem­ber 22 polit­i­cal ral­ly, Pres­i­dent Don­ald Trump kicked off a ker­fuf­fle by call­ing on the Nation­al Foot­ball League (NFL) to fire play­ers tak­ing a knee dur­ing the Nation­al Anthem. Wouldn’t you love,” said the pres­i­dent, to see one of these NFL own­ers, when some­body dis­re­spects our flag, to say, Get that son of a bitch off the field right now, out, he’s fired. He’s fired!’”

The NFL and the NFL Play­ers Asso­ci­a­tion (NFLPA) respond­ed imme­di­ate­ly in sup­port of the play­ers. As protests con­tin­ued, Trump kept blast­ing away. Debate raged on for weeks about free speech, race, social jus­tice, patri­o­tism and more. Alto­geth­er over­looked, how­ev­er, were the play­ers’ union rights that effec­tive­ly ren­der Trump’s demand worthless.

Ground rules

The NFL and the NFLPA are co-equal par­ties to a col­lec­tive bar­gain­ing agree­ment (CBA) that sets wages, rules and work­ing con­di­tions. The union is the work­ers’ accred­it­ed rep­re­sen­ta­tive, while the employ­er man­ages the work­place with poli­cies that don’t vio­late the CBA or the law.

In gen­er­al, union work­ers are not at will” employ­ees like nonunion work­ers. If dis­ci­plined (warned, sus­pend­ed or ter­mi­nat­ed), they may resort to the CBA’s griev­ance pro­ce­dures, includ­ing neu­tral and bind­ing arbi­tra­tion. The employ­er must show just cause for dis­ci­pline by prov­ing that the work­er breached a pol­i­cy that was rea­son­able, known and con­sis­tent­ly applied — and that dis­ci­pline was rea­son­able and proportional.

There is no way Club own­ers could do that. Nei­ther the CBA nor employ­er poli­cies pro­hib­it protest, and there is no egre­gious con­duct at issue — such as theft or attack­ing anoth­er work­er — that would war­rant dis­ci­pline on its face. Con­se­quent­ly, amid swirling con­tro­ver­sy, the NFL and NFLPA met and agreed to uphold exist­ing pol­i­cy in the NFL’s game oper­a­tions man­u­al that play­ers should” stand dur­ing the Anthem. In oth­er words, it’s optional.

The deal stopped any ques­tion of dis­ci­pline in its tracks and promised mutu­al efforts toward address­ing the sociopo­lit­i­cal issues that gave rise to the protests. Dal­las Cow­boys own­er Jer­ry Jones, who had threat­ened play­ers after con­sult­ing with Trump, had no just cause” for dis­ci­pline based on rules, poli­cies or conduct.

Make no mis­take. This is all about col­lec­tive bar­gain­ing. The par­ties affirmed a past prac­tice,” which, in a union work­place, can be just as bind­ing as a CBA rule. If the NFL had uni­lat­er­al­ly changed the pol­i­cy — and espe­cial­ly if a protest­ing play­er got fired, as Trump insist­ed — the door would swing wide open to a union griev­ance and poten­tial arbi­tra­tion, drag­ging out more con­tro­ver­sy the par­ties want­ed to avoid. 

Union defense

Con­tract lan­guage lim­its dis­ci­pline even more. A review of the cur­rent CBA, found online and con­firmed with an NFLPA spokesper­son, sig­nals game over for the Trump-Jones threat.

Arti­cle 42, Sec­tion 2(a):

All Clubs must pub­lish and make avail­able to all play­ers at the com­mence­ment of pre­sea­son train­ing camp a com­plete list of the dis­ci­pline that can be imposed for both des­ig­nat­ed offens­es …and for oth­er vio­la­tions of rea­son­able Club rules.

The Cow­boys’ train­ing began July 24, weeks before Trump’s demand and Jones’ sub­se­quent capit­u­la­tion. The Cow­boys pro­vid­ed no con­fir­ma­tion that a Club rule about protest had been duly listed.

Arti­cle 46, Sec­tion 4:

The Commissioner’s dis­ci­pli­nary action will pre­clude or super­sede dis­ci­pli­nary action by any Club for the same act or conduct.

The CBA and past prac­tice indi­cate that the NFL Com­mis­sion­er has the final say on what dis­ci­pline a Club may pur­sue. Com­mis­sion­er Roger Good­ell was not dis­posed — before or after the joint meet­ing — to dis­ci­pline protest­ing play­ers. All but one Club own­er, Jer­ry Jones, agreed.

Arti­cle 49, Sec­tion 1:

There will be no dis­crim­i­na­tion in any form against any play­er by the NFL, the Man­age­ment Coun­cil, any Club or by the NFLPA because of race, reli­gion, nation­al ori­gin, sex­u­al ori­en­ta­tion, or activ­i­ty or lack of activ­i­ty on behalf of the NFLPA.

Giv­en rules, pol­i­cy and prac­tice, it could be argued that curb­ing protests ini­ti­at­ed by play­ers of col­or over gov­ern­ment mis­treat­ment of peo­ple of col­or vio­lates this sec­tion. Fur­ther­more, the ref­er­ence to NFLPA activ­i­ty” reflects long­stand­ing labor law pro­tect­ing work­ers’ rights to par­tic­i­pate (or not) in con­cert­ed activ­i­ties for the pur­pose of col­lec­tive bar­gain­ing or oth­er mutu­al aid or protection.”

Trump repeat­ed­ly pres­sured own­ers to fire pro­test­ers in vio­la­tion of the CBA. Con­cert­ed activ­i­ties” have blos­somed with dis­plays of sol­i­dar­i­ty among play­ers — and even some man­age­ment. They take a knee, lock arms, or raise a fist. And some, as they always have, choose to stand, which is their right.

Hold­ing the line

On Octo­ber 29, protest reached the boil­ing point,” Dead­line report­ed.

Hous­ton Tex­ans own­er Bob McNair’s com­ment com­par­ing play­ers to inmates run­ning the prison” instant­ly caused an uproar in a league where 70 per­cent of play­ers are black and already protest­ing per­ceived injus­tice,” Dead­line observed. In response, play­ers planned the biggest protest yet. 

Word cir­cu­lat­ed that joint meet­ings to address social jus­tice con­cerns had been cancelled.

Jones — still agi­tat­ed and agi­tat­ing — had report­ed­ly orga­nized a Club own­ers’ con­fer­ence call to dis­cuss oust­ing Good­ell. He also cut line­man Damon­tre Moore, who had raised his fist dur­ing the Anthem. The Cow­boys said it was mere­ly a ros­ter move.

Moore joins Col­in Kaeper­nick, the San Fran­cis­co 49er who start­ed the protests and then got zero job offers after becom­ing a free agent. Kaeper­nick­’s lawyer filed a griev­ance alleg­ing col­lu­sion between the Clubs and the NFL in vio­la­tion of CBA Arti­cle 17, appro­pri­ate­ly titled, Anti-Col­lu­sion.”

As it stands now, no play­er has been offi­cial­ly dis­ci­plined for protest­ing, and the pol­i­cy, prac­tice and CBA are intact. 

Kathy Wilkes is an award-win­ning labor writer and edi­tor, and a for­mer union orga­niz­er, co-founder, offi­cer, nego­tia­tor, and com­mu­ni­ca­tions direc­tor. She is based in Madison.
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