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Is Taking a Knee Protected by the NLRA?

In the fall of 2016, National Football League (NFL) quarterback Colin Kaepernick began taking a knee during the national anthem. It was his way of protesting the killing of several black individuals by police officers. While Mr. Kaepernick is out of an NFL job this season, many other NFL players have demonstrated their support of him and his protest by taking a knee before their games. When President Trump tweeted his displeasure with this choice, more players responded by kneeling. Some NFL owners are beginning to consider whether to penalize the players taking a knee before games. Is there any legal impediment to NFL owners potentially demanding that their players stand during the national anthem? 

The answer to the question may be in the National Labor Relations Act (NLRA). In fact, a union in Texas has sued Dallas Cowboy’s owner Jerry Jones, who threatened to bench players that did not stand during the anthem, for violation of the NLRA. Section 7 of that statute provides that union and non-unionized players have the right to engage in “concerted activities” for mutual aid or protection to improve their lot as employees without repercussion from their employers. 

Are players taking a knee seeking to improve the terms and conditions of their employment? Possibly. The primary purpose behind the protests was racial justice and not necessarily labor conditions. However, for players kneeling in support of the other players’ right to do so and to protest unfair punishment that is arguably the essence of concerted activity for mutual aid or protection. Arguments have also been made that societal race discrimination, particularly by police officers, cannot be artificially removed from the players’ lives as employees. The NFL collective bargaining agreement regulates player conduct both on the field and in public, increasing the likelihood that protests of public matters are included in their life as employees.