The NAACP’s interim president Derrick Johnson is requesting a formal meeting with NFL commissioner Roger Goodell to the failure of any team to pick up Colin Kaepernick and how the NFL will honor his “constitutional rights” and those of other NFL players. I have said previously that I strongly disagree with the decision of Kaepernick and others to refuse to stand during the national anthem. However, I fully accept the first amendment right to carry out such protests. However, the question is far more complex when moved into the realm of employment and demonstrations at work. The question becomes less a constitutional matter than an employment matter.
In the letter, Johnson accused the NFL of “blackballing” Kaepernick, who is often booed by fans who view his protest as disrespectful of the country’s values.
Last season, Mr. Kaepernick chose to exercise his First Amendment rights by protesting the inequitable treatment of people of color in America. By quietly taking a knee during the national anthem, he was able to shine a light on the many injustices, particularly, the disproportionate occurrences of police misconduct toward communities of color. As outlined in your office’s public statement, this act of dissent is well within the National Football League’s stated bylaws. Yet, as the NFL season quickly approaches, Mr. Kaepernick has spent an unprecedented amount of time as a free agent, and it is becoming increasingly apparent that this is no sheer coincidence.
“No player should be victimized and discriminated against because of his exercise of free speech — to do so is in violation of his rights under the Constitution and the NFL’s own regulations.
We have previously discussed the issues of free speech and privacy within the realm of employment. The first amendment protects citizens against censorship from the government as opposed to private parties. The latter is more of a “Little Brother problem.” Employees generally do not have the right to use their workplace for political statements or protests. They are hired to perform a task and such protests can have a significant impact on customers and business. When someone goes to Starbucks, they want a coffee not a controversy.
Having said that, the national anthem is viewed by Kaepernick as a type of forced political speech in favor of a national symbol that he associates with the oppression or abuse of African Americans. In the public school setting, the Court has recognized the constitutional right of students to refuse to recite the pledge of allegiance. Standing for the anthem is heavily laded with symbolism — indeed that is precisely why people are upset. That certainly makes this controversy a closer issue but not, in my view, a determinative one. Employers generally have a right to bar players from using games to carry out a political protest.
Adding to the difficulty for asserting a constitutional violation against Kaepernick is the fact that he is not a particularly good player. According to ESPN, he was one of the league’s least-accurate quarterbacks in the NFL with a dismal 60.1 completion percentage — ranked No. 23 in the NFL. His percentage of off-target throws — judged on video by ESPN Stats & Information — ranked No. 18 (17.6 percent). Accordingly he brings much controversy to games but not an equal amount of talent.
Thus far, the NFL and owners have not stopped players from protesting at these games despite the majority of fans who object to the demonstrations. However, when firing decisions are made, teams make a holistic judgment on what a player can offer to a team in both of talent and controversy.
In the end, I still do not appreciate these protests. The flag and anthem represent the values of a country that has not always lived up to our beliefs. We remains a nation with deep racial and social problems, but the anthem reflects a commitment to work through those problems together. It represents a constitutional system that has had many triumphs in the fight for equality from desegregation to voting rights to anti-discrimination laws. Standing for the anthem reflects our mutual support for those ideals despite the fact that we have not always down the most to maintain them.
The allowing players to protest raises some difficult questions for the NFL. Would the teams feel the same way if players took a knee to oppose immigration policies or the other issues? When benefit of a ban on protests during the anthem is to avoid a slippery slope where teams have to decide what protests will be allowed and what will be barred. At the moment, the NFL appears to be saying that you can refuse to stand for any reason.
What do you think?
The question regarding anthem protests should be “why do we play the SSB at sporting events?” They are not government sanctioned assemblies like at school or community centers. Do we have to stand for the anthem when we attend a concert, play, movie, etc.? Simple, but impossible I know to implement, solution: Don’t play the anthem at non-governmental functions.
Harry, The National Anthem began being played @ MLB games during WW1 as a show of unity and patriotism. It spread and continued since then. I sense you also want those Confederate symbols removed as well?
” “why do we play the SSB at sporting events?””
Because it is part of the show.
Kaepernick was not part of the show and he interferred with it so he rightfully got canned.
Kaepernick’s best option is to move to one of the many other countries in the world where they’ll pay a black man $19 million to be an incompetent quarterback.
Jay, LOL! I think his only other option would be Canada. He actually would be a top starter in the CFL but not make that 19 million. The average salary up north is 80K. If you were to take Peyton Manning’s salary and endorsements his final year[$42 million] that would cover the salary of EVERY CFL player.
JAY – there is always the Canadian Football League and there is now one in Europe.
I think the main issue is that no one is guaranteed the right to play football in the NFL. Quality of performance is more important than whether someone engages in protests while on the job. If he can’t perform as good as or better than other people qualified to work in that position, then he is not entitled to have a job in his chosen career field.
An old comment about this, which is sports-related, is that he’s writing checks that his body can’t cash. And that’s what the real issue is: When given the chance, he has not performed as well as others in equal positions.
To me, that’s all that matters.
Kaepernicks has a right to protest, but people have a right not to like him and not to hire him.
I would like to see Colin Kaepernick trying out with the New England Patriots. I expect that he would prove to be a highly intelligent, gifted athlete. If he is just a faker looking for publicity, Bill Belichick would cut him.
Belichick has no tolerance for showboaters like this, particularly mumble-mouthed showboaters. He cuts any athlete who values himself over the team, irrespective of the athlete’s residual talents. And then there is the obvious fact that NE already has two QBs who are demonstrably better than Mr. “Take a Knee.”
Coach Belichick is smart enough and experienced enough to take the best quarterback available after all factors are considered.
Yes, and right now that QB is TB12, and behind him is Jimmy G who continues to improve…..Colin Take-a-Knee doesn’t even come close. But you’re ignoring the simple facts that Belichick is one of the best number-crunchers in the business, and he and his team push the players very hard on the money front to stay under the cap so they can build depth where needed. BB has an uncanny knack for determining when a player is on the decline before anyone else can see it, and he does not tolerate dissent or locker-room issues. You think Mr. “No Days Off” is going to put up with someone like Kaepernick? What happened to Wes Welker, Aqib Talib, Jamie Collins, the list goes on and on…..
Kaepernick has an absolute right to protest and a private business has an absolute right to fire him for acting in a fashion that doesn’t meet the business’s needs and standards.
When speaking of strictly private employers you may have a point, but the NFL is not a strictly private employer. It receives many tax subsidies and other perks from federal and state governments, underwritten by taxpayers, not the least of which are the generous subsidies they receive for stadiums. In addition, most employers don’t have patriotic ceremonies with flags and the national anthem playing where everyone, the public as well as employees, is expected to honor the ceremony and the anthem whether they want to or not. Engaging in such a ceremony should not be part of anyone’s employmentn nor should anyone be forced to participate. It should be up to the individual employee to decide whether he or she will participate. One could make the argument that an employee can be barred from making a public demonstration rather than merely refusing to attend, but this should have been a rule that was established and publicized ahead of time. In short, I think the NFL is wrong on this issue.
What is “private” is defined by courts. It’s to a certain extent arbitrary. Most so-called “private” colleges receive a lot of govt money.
Louise, We’re all SHOCKED that you think Kap is being wronged. SHOCKED, I say! You actually need to know about football and how your guy, Kap, stacks up against other QB’s in the league in order to make any intelligent comment. However, history has shown you are a vapid ideologue who knows little, but says much.
For all the al left, this is NOT a 1st Amendment issue. This is an EMPLOYMENT issue. There are at least 30 other players GOOD ENOUGH to be employed still doing protests. If you read about “Kap” you’ll see he is not very bright. The protesting 60’s Bill Russell, Ali, Jim Brown, etc. black athletes were smart and articulate. “Kap” is 0 for 2 in those categories. He is a pawn, being played by racial pimps.
Spot on, Nick.
I agree we have Freedom of Speech.
But I don’t have it at work.
Why would the NFL players have it at work?
Does Professor Bret Weinstein have it at work? Because his employers act like he doesn’t.
The difference is that Weinstein is a state employee, which actually gives him greater free speech protection than NFL players have. Or rather, it would if the president of evergreen state were not such a pathetic pussy.
And what of the Constitutional rights of football coaches at public high schools to pray?
Prayer is the separate clause in 1st Am-the Establishment clause about government not establishing a religion. I think that is a separate issue than free speech if you look at the cases. I’m not sure that example is pertinent on this issue. He exercised his free speech by kneeling. Now he is a free agent. 1st Am let’s you speak but doesn’t say anything about people have to listen.
The protections arising out of the First Amendment only apply to governmental action. Discrimination on account of religion by private actors is not forbidden by the First Amendment, but by Title VII and various state laws.
They can pray anytime and anywhere they want to. They just can’t take actions which would effectively require others to take part in their private religious activity or suggest that such activity is favored by the government. The thing about prayer is that it can easily be done so that no one around you knows you are doing it. If you require that others pay attention to you praying, one has to wonder what your real goal is.
If he is a lousy player and controversial, what team wants to take on the trouble. Maybe he needs to consider a career in baseball, like Tebow?
The NAACP is beclowning itself. The corporations which field the teams are not organs of government. The market position of the NFL and the NCAA is such that you might argue that said leagues should have the status of monopolistic common carriers, but the preferences of the team owners are not the leagues preferences.
Whatever the legal obligations of the parties are, as a general rule, it’s inconsistent with a robust public culture to have employers harassing their employees for extraneous reasons. That’s complicated here inasmuch as Kaepernick has been making a spectacle of himself on work-time.
Nazis protesting with Nazi flags screaming Jews will not replace us is good old free speech! Not standing for national anthem to protest decline in America’s treatment of anyone who isn’t white? Treason! I’m not sure where this country is headed but it isn’t in a good direction.
Nationalize the NFL and then the NFL will be covered under the First Amendment. It would be fun to watch Congress run the NFL.They do such a wonderful job in everything they do,
Seems that high school coaches are not given their First Amendment rights and their employers are governmental agencies.
Specifically delineated conditions of employment I assume. But maybe First Amendment is only for the winners in the Culture War.
I’m not sure where this country is headed but it isn’t in a good direction.
If the rest of your post is a reflection of how ignorant of rights our citizenry have become, then your last sentence is most certainly true.
Maybe Crapernick should take a real good look at a great American NFL player like Pat Tillman a “White” player.
I strenuously disagree with Kaepernick’s protest, but it’s protected speech and certainly not treason. By protected speech, I mean he cannot be sanctioned by the government. It doesn’t mean that he can’t be blackballed by potential employers. Frankly, I think he’s being black balled because he can’t read coverages more than any other reason.
If he was a great QB or even good QB he would be playing today regardless of his taking a knee. These guys make millions playing a game and complain while young men and woman devote their lives to protecting this nation.
If he had raped women or beaten dogs, he would have a job with the NFL. Demand for quarterbacks even mediocre ones is very high.
You know nothing about the business.
https://sportsday.dallasnews.com/dallas-cowboys/superbowllocal/2011/02/07/dallas-official-gives-michael-vick-key-to-the-city-draws-anger
Frankie,
You really have been out of the NFL loop for quite a while.
Rapists and spouse abusers are currently playing and Jay Cutler received a contract.You are entirely wrong.
frankly, As my old man would say in this situation, “If you’re going to talk out of your ass at least do us the courtesy of standing on your head.”
There is a numerical QB rating system. Check out Kap’s rating the last couple years. He is not even mediocre. He actually had a lotta potential a few years ago. I hear a lot of that cash went up his nose. “Wasted talent” as we heard in A Bronx Tale.
http://www.nfl.com/stats/categorystats?tabSeq=0&statisticCategory=PASSING&season=2014&seasonType=REG Ranked 17out of 50. Your old man must have been talking about you standing on your head quite often.
As stated previously, most of those points are based on his golden legs. He is way down in passing and decision making and considered one of the worst in reading defenses.
SWM, you were the one who pointed out the NFL will sign rapist and killers, although that is currently changing a bit. IF YOU CAN PLAY there are teams that will look past your criminal behavior. Kap can’t play and he has a high salary. This is a no brainer.
A lot of posters here apparently think teams are just loaded with players like Johnny Manziel and Greg Hardy. Pfffft.
“anthem reflects a commitment to work through those problems together”
What anthem are you talking about? The SSB only glorifies violence and says nothing about working through problems.
The SSB only glorifies violence and says nothing about working through problems.
I would say The Defence of Fort McHenry against the British in 1812 was a great example of working through problems.
You really have no shame, do you?
Violence is the direct opposite of working through problems.
The dog and his lover are a pair of fatuous clods.
What do I think? I think whether you are an unpaid intern or making $10 million a year, if your conduct negatively impacts the business then you should no longer be working for that organization. One more thing, if the NFL determines players are allowed to use their employment with a sports franchise to make political statements that brings dishonor to those that serve to protect their rights, then I will no longer buy their product.
They won’t miss my business and I certainly have better things to spend my time on.
Kapernick is not a good player. If that is true and from what I have read it is, he shouldn’t be hired! Isn’t football about being able to play football?
His free speech rights and their protection are important but he isn’t being hired as a writer or journalist but as a football player. Failure to hire him because he doesn’t have the skills has nothing to do with his free speech.
But none of us knows the actual reason he was not hired. There are other mediocre players in the NFL who were hired. To punish him like this for a quiet demonstration seems to me to be unwarranted and un-American. No employee should be forced to stand for a patriotic ceremony that has nothing to do with the job. Either the NFL is part of government or it is not. The NFL should make up,its mind and stop acting as if it is part of the government, but only when it suits them.
Like Jay Cutler.
As we all know, Cutler is a dog ass. However, he has a golden arm and a 10 cent head. Kap has a 10 cent head, a 10 cent arm[no touch just fastballs] and golden legs. Most of his poor rating points comes from his running ability. Passing is a liability for Kap and the NFL is A PASSING LEAGUE. Cutler is like an MLB pitcher who has a golden arm. Someone will always pick him up because MLB is about pitching.
If someone wants a serious discussion it would be this. Kap lit the league up w/ his legs in his first couple years. The league adjusted but the poor work ethic Kap did not. His big salary is a detriment, a salary based on his couple of good years.
Let me say for THE 3RD TIME. There are ~30 NFL players who DO NOT STAND and they all have jobs because THEY CAN PLAY!! As someone said, you can rape and kill and get a job IF YOU CAN PLAY. KAP CAN’T PLAY and his salary is high.
He can play as well as or better than Cutler and he is healthier. The Vikings should take him.
LOL! Keep talking and digging that hole, SWM. again, Cutler has one of the best arms to EVER play in the league. He has a horrible head. He can read defenses but makes poor decisions. Kap can’t pass, read defenses or make good decisions. He is a very good runner. The job of the QB in the NFL IS TO PASS! As stated previously, he could be a star in the CFL. The Vikings have 2 QB’s better than Kap, one is hurt. Bradford has a golden arm. Now, if someone loses a starting QB during the season I could see someone taking a gamble on Kap. But at this point, he’s got little value. That’s just the fact. Plus he is rumored to have a coke problem. Bad arm, bad head, AODA issues, $19 million dollar salary. it’s going to take a desperate team to pick him up.
Miami was DESPERATE when they picked up Cutler because he HAS A GOLDEN ARM in a league that reveres PASSING. Kap is a horrible passer. Tony Romo might get lured out of the booth and taken before anyone takes Kap if a team loses a starter.
I know nothing of sports other than if a player helps the team to win thereby making the team profitable they give not one shit if he murders dogs, rapes women, or beats his wife so taking a knee during an anthem seems minor in comparison to some other well publicized negative activities of sports figures in recent years.
The teams are businesses therefore all they really care about is profits.
I think we are in the middle of seeing teams (and other employers) give a shit, if for nothing else because they have to for their bottom line. Employers are in the business of making money, and if an employees actions, especially at work, look bad on the employer in the eyes of the customer base, they should be allowed to fire them.
Great article, as usual. Small typo in 2nd to last graph: “We remains”
For the last 2 years kaepernick has been last or near last of the QB ratings. There are ~30 other players who have protested the anthem. They ALL have jobs. Kaepernick does not have a job because he SUCKS! He can buy tickets to NFL games and take a knee during the anthem in the stands.
If you want superb analysis on Karpernick, read what Jason Whitlock says on his Twitter feed and elsewhere. As Whitlock points out, the dangerous stance is to criticize Kaepernick if you are a player. You will be vilified by the liberal press and called a racist. Well, unless you’re black and criticize Kaepernick, then you’ll be called a “Tom” by white, Ivy League, reporters.