Kaepernick Rolling Out of the Constitutional Pocket: NFL’s Restriction of Players’ First Amendment Rights

by: Nicolas Chavez

On August 26, 2016, NFL quarterback Colin Kaepernick made headlines for sitting during the national anthem prior to his team’s third preseason game.[1] Kaepernick explained the purpose of his silent protest is to use his status as a professional athlete to bring light to the prevalence of institutionalized oppression of people of color. NFL and non-NFL professional athletes soon joined Kaepernick’s sit-turned-kneel protest.[2] Rather than focusing on the issue of social injustice, national debate has centered on the appropriateness of the protest.

The critical question in this debate is whether the first amendment protects Kaepernick from any NFL sanctioned disciplinary action. While the right to free speech is explicit, it is not absolute. Although it is established that citizens of the United States are entitled to the fundamental right to free speech,[3] the first amendment applies to state action and not necessarily to the actions of private citizens.[4] Private employees generally are not protected by the first amendment unless a state enacts a statute prohibiting private employer actions restricting free speech.[5] The NFL is incorporated in the state of New York,[6] a state that lacks such a statute. Therefore, as a private employer, the NFL is not restricted by the first amendment in its ability to discipline its employees.

However, the league has implied there will be no disciplinary action in response to the Kaepernick inspired protests because “[p]layers are encouraged but not required to stand during the playing of the National Anthem.”[7] Yet it should be noted that the league has restricted expressions of speech in other contexts. Recently, the NFL did not allow the Dallas Cowboys to wear a decal on their helmets to honor the Dallas police officers tragically murdered in July.[8] The decision was made pursuant to the NFL Rule 5, Section 4, Article 8, entitled “Personal Messages” which provides: “Throughout the period on game-day that a player is visible to the stadium and television audience, players are prohibited from . . . displaying, or otherwise conveying personal messages either in writing or illustration . . . ”[9] While the rule indicates messages subject to discipline are limited to wearable items, the ambiguity of the term “illustration,” leaves room for broader interpretation.[10]

The NFL has shown consistency with its response to silent protests. In 2014, it refused to discipline players after they participated in a pre-game “hands up, don’t shoot” demonstration.[11] The NFL publicly confirmed its decision after the St. Louis Police Officer’s Association requested NFL disciplinary action.[12] The NFL’s response here and to Kaepernick’s act did not address its ability to discipline but solely its decision not to. These decisions appear to be rooted in supporting expressions of speech concerning social matters through acts, not wearable items.

In the 2006 case addressing first amendment protection of government employees, Garcetti v. Ceballos, the Supreme Court stated that employers “need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of . . . services.[13] Regardless of the NFL’s role in society, the pursuit of profit is undoubtedly one of its top priorities. For instance, the massive on-field apparel rights contract it has with Nike cannot be overlooked when scrutinizing the NFL’s strict adherence to restricting speech that may interfere with player uniforms.[14] Luckily for Kaepernick, his jersey has topped jersey sales among all players since his silent protest, contributing to NFL revenue.[15]

So for players considering future Kaepernick-like protests, note the First Amendment of the Constitution does not protect players from NFL disciplinary action. Therefore, before a player rolls out of the “Constitutional” pocket, he should keep in mind that if the play ends up hurting his team, he may quickly find himself riding the bench.

[1] Steve Wyche, Colin Kaepernick Explains Why He Sat During National Anthem, NFL (Aug. 27, 2016, 10:04 AM), http://www.nfl.com/news/story/0ap3000000691077/article/colin-kaepernick-explains-why-he-sat-during-national-anthem.

[2] Mark Sandritter, A Timeline of Colin Kaepernick’s National Anthem Protest and the Players Who Joined Him, SB Nation (Sept. 12, 2016, 10:32 PM) http://www.sbnation.com/2016/9/11/12869726/colin-kaepernick-national-anthem-protest-seahawks-brandon-marshall-nfl; See Also Graham Hays, U.S. Soccer: We Expect Our Players, Coaches to Stand for Anthem, ESPN (Sept. 16, 2016), http://www.espn.com/espnw/sports/article/17558219/us-soccer-midfielder-megan-rapinoe-kneels-again-national-anthem-friendly.

[3] U.S. Const. amend. I.

[4] U.S. Const. amend. XIV.

[5] Shumann v. Dianon Sys. 304 Conn. 585 (2012).

[6] Company Overview of National Football League, Inc., Bloomberg (Sept. 16, 2016, 5:31 PM), http://www.bloomberg.com/research/stocks/private/snapshot.asp?privcapId=165309.

[7] Mike Florio, NFL: Players Are Encouraged but Not Required to Stand for National Anthem, NBC Sports (Aug. 27, 2016, 1:50 PM), http://profootballtalk.nbcsports.com/2016/08/27/nfl-players-are-encouraged-but-not-required-to-stand-for-national-anthem/.

[8] David Marcus, The NFL Banned The Cowboys From Honoring Police. Will It Do the Same to Seahawks Anthem Boycotting?, the FEDERALIST (Sept. 9, 2016), http://thefederalist.com/2016/09/09/nfl-banned-cowboys-honoring-police-will-seahawks-anthem-boycotters/.

[9] Roger Goodell, 2016 Official Playing Rules of the National Football League 23-24 (2016).

[10] Id.

[11] Danny Cevallos, Does Free Speech Stretch to NFL, CNN (Dec. 2, 2014, 8:27 PM), http://www.cnn.com/2014/12/02/opinion/cevallos-nfl-ferguson-protest/.

[12] Id.

[13] Garcetti v. Ceballos, 547 U.S. 410, 418–19 (2006).

[14] Terry Lefton, Nike Extends On-Field Deal with the NFL, Sports Business Daily Global Journal (Mar. 16, 2015), http://www.sportsbusinessdaily.com/Journal/Issues/2015/03/16/Marketing-and-Sponsorship/NFL-Consumer-Products-Summit.aspx.

[15] Darren Heitner, Colin Kaepernick Tops Jersey Sales, Forbes (Sept. 7, 2016, 7:54 PM), http://www.forbes.com/sites/darrenheitner/2016/09/07/colin-kaepernick-tops-jersey-sales-in-nfl/#6ead8b0d39a1.

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