Legal experts split on if league can punish for anthem protests
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.
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 inextricably linked with the NFL. The vast majority of stadiums were constructed or renovated with public money, including the Cowboys’. 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.