Plans to punish ‘disrespectful’ players a risk
NFL teams could face lawsuit over First Amendment rights
WASHINGTON — Jerry Jones may want to bench Dallas Cowboy players who don’t stand for the national anthem, but NFL owners could find themselves facing a First Amendment lawsuit if they punish football players or coaches for their protests after taking government money into the private business of professional football.
The NFL is a private business — and the First Amendment only protects Americans from free speech abuses from the government. But legal experts differ on whether pro teams who play in publicly funded stadiums or who accepted government money in exchange for patriotic displays like the national anthem could find themselves legally exposed if they punish kneeling players.
The money exchanged between governments and pro football teams could mean that discipline enforced by the team could be “fairly attributed to a government entity, meaning the employer could not discipline someone for taking a political position,” Harvard Law School professor Mark Tushnet said.
A judge could find it “relevant that some of the stadiums have been constructed with public support and may get continuing public subsidies,” Tushnet said. “It may be relevant that some of these practices were instituted in cooperation with the national military.”
“If the government pays for the patriotic display and the firing is a result of the behavior being
deemed insufficiently patriotic, it is conceivable that that a claim could then be articulated,” said Floyd Abrams, a First Amendment attorney in New York.
The NFL has been embroiled in controversy over players using the national anthem before games as a platform for protest. Former 49ers quarterback Colin Kaepernick started the movement last season when he refused to stand during the anthem to protest racial inequality and police brutality. Kaepernick remains unsigned and wants to resume his career, but other NFL players have picked up his cause and kneeled, sat or made other gestures during “The Star Spangled Banner.”
Jones, one of the NFL’s most powerful owners, has said the NFL can’t leave the impression that it tolerates players disrespecting the flag and said any Cowboys doing so will not play.
“If you do not honor and stand for the flag in a way that a lot of our fans think that you should, if that’s not the case, then you won’t play,” Jones said Tuesday on a Dallas radio station.
Public money is linked with the NFL. The vast majority of NFL stadiums were constructed or renovated with public money, including the Cowboys’ home in Arlington, Texas. The Taxpayer Protection Alliance rated AT&T Stadium as one of the most egregious abuses of taxpayer money, saying the cost to taxpayers has been about $444 million.
And the NFL was paid by the military for at least four seasons for its patriotic displays during pregame, as part of defense spending to market to potential recruits. After complaints from Arizona Sens. Jeff Flake and John McCain, the NFL in 2016 repaid the government more than $700,000 covering payments from four NFL seasons, 2012-2015, for activities including performances of the national anthem, fullfield flag details and on-field color guard performances.
FROM THE WHITE HOUSE:
President Donald Trump says “it is about time” that NFL Commissioner Roger Goodell demands “that all players STAND for our great National Anthem-RESPECT OUR COUNTRY.”
Trump made a reference Wednesday on Twitter to Goodell’s meetings next week with NFL owners, where they will consider changes to a game manual that says players “should” stand during the national anthem. That’s a guideline that the league has left to the discretion of players who have kneeled in larger numbers after Trump’s criticism.
NFL owners will have their annual fall meeting in New York on Tuesday and Wednesday. The league has invited the players’ union to take part.