Takeaways From the NFL National Anthem Controversy for Unionized Employers
July 31, 2018
This past May, the National Football League (“NFL”) unilaterally announced a change to its National Anthem policy, following a divisive 2017 season that saw players engaging in protests, plummeting television ratings, and negative publicity, including criticism from President Donald Trump. This change in policy required all players on the field to stand at attention while the anthem is played, but allowed nonconsenting players the option of staying in the locker room. Moreover, the new policy provided punishment—in the form of monetary fines—against teams that violated the new policy and allowed teams to mandate individual player punishments.
On July 10, 2018, the National Football League Players Association (“NFLPA”) filed a grievance against the NFL, arguing that the NFL implemented the policy without player input and is otherwise inconsistent with the collective bargaining agreement (“CBA”), while infringing on players’ rights. Along with the filing, the NFLPA requested that the NFL begin confidential discussions with the union to discuss a solution without proceeding to litigation. The NFL agreed to the discussions.
Recently, several teams, notably the Dallas Cowboys and Miami Dolphins, introduced statements and team policies further constricting the players under the new NFL policy. The Miami Dolphins, in particular, ignited public backlash when leaked documents revealed that the team’s discipline policy for anthem conduct violations would include game suspensions and fines—the same punishments available for drug use or possession, gambling, breaking curfew, and riding motorcycles. The individual team policies were introduced under the terms of the current CBA that address “conduct detrimental to the club.” (Article 42 of the CBA, which can be found here.) The public backlash was such that the NFL rescinded the newly-announced policy, and the NFL and the NFLPA released a joint statement indicating the parties had reached a standstill agreement where no new rules would be issued or enforced while the discussions were ongoing.
With training camps already underway, pressure is on the union and the league to come to terms, before the anthem controversy overshadows another season of football.
What does this professional sports controversy have to do with employers and unions not in the national spotlight? The anthem controversy actually highlights several key takeaways for employers who have unionized workforces:
- A unilateral change of policy—under a broad term in the CBA—opens the employer to legal challenges. Depending on the industry and labor market, a unilateral change affecting terms or conditions of employment could result in a grievance, an unfair labor practice complaint, and, in cases analogous to the NFL, even civil rights or antitrust litigation.
- One of those legal challenges, arbitration, could potentially be a risky outcome. A challenge to a unilateral change of a term could possibly be an issue of interpretation of the CBA, labor law, or, in the case of the NFL, antitrust or civil rights law. Moreover, challenges to an arbitrator’s ruling face a high burden in the appeals process. Courts give arbitrator’s rulings high deference on review, meaning that, absent a glaring and massive departure from the CBA or established law on the part of the arbitrator, that decision will likely be upheld.
- Unless an employer has a strong position that a policy does not need to be negotiated, collaboration from the outset (as the NFL has now agreed to with the NFLPA) may have prevented this legal challenge and situation for the league.
- Finally, the players’ activities may invoke federal labor law protections, as their protests may be characterized as “concerted activities.” To qualify, such action must be conducted in concert with co-workers, address an issue of relevance to their job, and carried out using appropriate means. While there is likely considerable debate about whether the NFL players are engaging in concerted activities, private employers should be aware of what these activities may look like in their workplace. Examples may include employees discussing wages and benefits; circulating petitions requesting more favorable hours; refusing to work in unsafe conditions; or discussing problems in the workplace with the employer, media, or government. While the current administration may have a more restrictive interpretation of “concerted activities”, federal labor law may protect an employee from discharge for participation in these activities.