First off, it is important to
recognize that for all that it acts like a Federal institution, the National
Football League is a business, owned and run by private citizens. Functionally
it is more like a collective than an actual franchisor, despite the individual
team organizations being called “franchises,” but that does not change its
legal status. As long as the restrictions are applied equally to all groups and
parties within their workforce, the NFL telling the players not to protest
something while on the job isn’t really any different from another business
telling its employees not to wear MAGA hats while at work, for example. Or, for
that matter, asking its personnel to wear clothing that covers any tattoos during
working hours…
One could reasonably argue
that the NFL’s claim that allowing the protests to continue is bad for their
business is not convincing. So far, at least, I haven’t seen any data that
suggests that people who are specifically opposed to these protests will stop
watching the games, or that any of the advertisers will stop sponsoring the
broadcasts. Likewise, the argument that other groups will start demanding equal
time is rather dubious; to date no one seems to be staging protests that there
aren’t enough people of color being randomly shot by the police, or that First
Amendment rights are somehow a bad thing. In fact, over the last few decades
there have been any number of players – and occasionally entire teams – wearing
special colors or graphics in support of various causes, and this does not
appear to have impacted the League’s business success, either…
At the same time, it doesn’t
seem unreasonable to suggest that the League is under no obligation to provide
their employees with a public forum in which to promote their position, either.
If the NFL wants to require their broadcast partners not to air footage of the
players kneeling, or deny access to the games to journalists and sportswriters
who describe or display pictures of the protests, they would appear to be
within their rights to do that. If they attempted to prevent their employees
from talking to the press about the protests, or from holding rallies and/or
giving speeches in support of their position there might be some difficulty,
but if any of the teams or their owners have tried to implement such a
restriction there hasn’t been any mention of it so far…
The issue is being
complicated by the fact that the issue is inherently political in a way that
wearing pink in support of breast cancer awareness or airing commercials in
favor of youth sports and fitness is not, to take only the most obvious
examples. It is also being complicated by the fact that both the League and the
teams make use of the names, uniform numbers, and likenesses of certain players
for promotional purposes, in which case the promotion of any particular cause
by a player can be interpreted as support for that cause by the NFL itself, if
the observer cares to see it that way. But despite these and other
complications, the basic question is fairly straightforward…
Does the NFL have the same right
to restrict the political and/or social protest activities of its employees
while they are in uniform and actively working for League members that any
other business has under the same conditions? Does the fact that their
employees are public figures, and that the NFL itself has contributed to
producing and maintaining those public identities give them rights over the
actions or speech of their players that would not apply to other companies? It
doesn’t seem reasonable to allow retail associates at The Gap to run through
the store with “Free Tibet” banners, or to require McDonald’s to allow its
employees to wear PETA regalia while on the job. Should NFL players have
greater or lesser freedom of speech than any other American workers? Or should
the teams and the league avoid all political and social commentary (at least on
camera) and just produce and display athletic competitions?
It’s worth thinking about…
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