No legal clause to back sacking of protesters, but NFL has wide latitude in punishing players

Private businesses — including sports leagues — routinely punish employees for things they say or do, even if those comments or actions are otherwise legal.

The First Amendment so often cited as a blanket justification for “free speech” doesn’t protect the employment of football players or race car drivers when they speak their minds.

So why did NFL owners — many of them Trump supporters — back their players instead of their president? It’s business.

Here are a few more questions and answers about the potential consequences of the NFL anthem protests:

What does the Constitution say?

The right to free speech is defined in the First Amendment, which reads: “Congress shall make no law ... abridging the freedom of speech, or of the press.”

Don’t ignore the first part: It’s the government that can’t restrict speech. In other words, out-of-work quarterback Colin Kaepernick can’t be thrown in jail for kneeling during the anthem, but the constitution doesn’t guarantee him a spot on an NFL roster.

So US Treasury Secretary Steven Mnuchin had the law on his side when he said of the protesting football players, “They can do free speech on their own time.”

What are players required to do?

The rules governing NFL player conduct are spelt out in its rule book, its personal conduct policy, and the collective bargaining agreement (CBA) negotiated between the league and its union. The rule book does not say players must stand during the national anthem.

The personal conduct policy covers activities that might be criminal — domestic or workplace violence, illegal gun possession, cruelty to animals — regardless of whether they result in a conviction or even criminal charges. (It also says players do not have protection against self-incrimination when they are investigated by the league, so there goes the Fifth Amendment, as well.) The CBA has two references to pre-game activities and neither involves the anthem or the flag.

Are players safe?

The NFL’s CBA also includes a boilerplate contract that requires not only a player’s best efforts on the field but also “loyalty to the Club, and to conduct himself on and off the field with appropriate recognition of the fact that the success of professional football depends largely on public respect for and approval of those associated with the game.”

This gives the league wide latitude in punishing players for behaviour that might damage the sport’s reputation — anything from illegal (or even legal) gambling to comments.