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Can The NFL Legally Punish Players For Kneeling Down During The National Anthem?

Does the First Amendment’s right to free speech prevent the NFL from firing or punishing its players for kneeling down during the national anthem? No. Alas, the First Amendment to the US Constitution is specifically designed to limit government officials and not private businesses. The NFL is a private company and, therefore, has every right to fire players or otherwise punish them for breaking their rules or team contracts. The question regarding the power the NFL has over the players is more of a contracts question and not a constitutional matter. NFL owners likely have the contractual rights to fire a player for kneeling during the national anthem. However, it would be interesting to see what, if anything, each contract specifically states regarding national respect and the national anthem. It appears that the NFL actually has rules regarding being out on the field during the game. Despite that rule, they declined to issue any fines last weekend. This could potentially lead to litigation on other matters as the legal argument might be made by players’ attorneys that the NFL waived their rights to enforce.

Does the First Amendment right to free speech prevent the government from punishing NFL players for kneeling down during the national anthem? Yes. But that’s not really at issue in this case. While President Trump has expressed his disapproval of disrespecting the nation by kneeling down during the National Anthem, he has not “fired” any players. President Trump cannot punish the players. If he were to do that, that would be extremely concerning for everyone, regardless of what side you are on regarding the protests. If an NFL player were to be fined by the government or charged criminally for their protest, I am certain that many lawyers, including myself, would be eager to defend the Constitutional rights of the person being charged. It may be arguable that President Trump shouldn't be making comments about boycotting the NFL as it is in a way a punishment, just indirectly.

In any event, the NFL is dealing with a major situation. On one side, people applaud the efforts of athletes to make a stance for social change and equality. On the other side, people are angered at the disrespect being shown to the armed forces.

Dallas Cowboys owner Jerry Jones’s response to the situation seems to be a brilliant answer to the situation. He had his team kneel before the anthem to show support for the protests while being unified, and then stand for the national anthem. It seems to be a win for everyone. Will the rest of the league follow suit?

If the anti-protestors refuse to show support for the protest before the national anthem, it would seem to show a lack of concern for equality and social justice.

If the protestors insist on kneeling during the national anthem and not just before, it would seem to show they are more interested in fomenting discord than then trying to effect positive change.