What started out as one player, Colin Kaepernick, making a statement about race by kneeling during the National Anthem, has exploded into a national conversation about race, protest, the American flag, and how we should respond to such protests. Overall, the NFL has been supportive of the players' protests, but on the flip side, Nascar owner Richard Petty stated he would fire any of his team members who knelt during the National Anthem.
While the politics are hot here, I'm not taking a political stance. I'm asking a question: Can either the NFL or Nascar legally fire, suspend, or otherwise discipline a player or driver for such a political protest? It's clearly been damaging to the NFL's bottom line, and if Nascar allowed protests there, it would be damaging to its business as well. Remember, while we may see these sporting events as games or races, they are also businesses--big businesses. And the fans (read: customers) provide the cash to keep these businesses running. Without the fans, the business dies.
I reached out to employment attorney Jon Hyman, a partner at Meyers, Roman, Friedberg & Lewis, and asked if you could legally fire someone for protesting on the job. I hoped Hyman would give me a simple "yes, you can" or a "no, you can't." The law, of course, is not that simple. In an email to me, he wrote:
The 1st Amendment is not involved because the NFL is not a state actor, it's a private employer and these are private employees. Thus, their political expression is not necessarily protected from retaliation, except in certain states.
- New Mexico prohibits employers from discriminating based on "political opinions."
- California, Colorado, Guam, Louisiana, Minnesota, Missouri, Nebraska, Nevada, South Carolina, Utah, West Virginia, Seattle (Washington), and Madison (Wisconsin) prohibit employers from retaliating against employees for engaging in "political activities."
- Connecticut prohibits discrimination based on the rights guaranteed by the First Amendment, provided that the activity does not substantially interfere with the employee's job performance.
I could also make the argument that states, like mine (Ohio), which prohibit retaliatory terminations that jeopardize a clear public policy (like the 1st Amendment) would also take issue with firing an employee who kneels during the national anthem as a form of political protest.
This is not an easy issue, and there are lots of decisions an employer must make before firing an employee for political expression, including reputational and business/brand harm.
Not quite so simple. Human resources manager and employee-relations expert Rebecca Goldbach also reminded me that these are employees under contract. She said,
The employer's ability to discipline/terminate in these cases may be based upon the terms and conditions of employment/how that employment is defined. If some of these guys aren't violating any morals clauses when they are arrested and often convicted of domestic assault, sexual assault, and other felonies, I can't imagine that pre-play activity on the field like taking a knee would also be in violation.
This is something that sets both NFL and Nascar employees apart from your employees. Most employees in the United States (excluding Montana) are at-will employees, which mean that unless the reason for termination is specifically prohibited by law, you can terminate a person for that reason. So, a noncontract employee in a state without political expression protection could be terminated for engaging in a political protest. But, when you add in a contract, you've got a different, excuse the expression, ball game.
It's not an easy decision for team owners. The fans are upset, the law is murky, but the clear winner here is Colin Kaepernick. He said he wanted to start a national conversation, and he has, indeed, done that.