Like many football fans, Republican Rep. Milo Smith is fed up with the protests by NFL players during the anthem. However, while many fans are staying away from games (setting record low attendance numbers), Smith wants to require NFL owners to reimburse fans who object to the protests. While I have expressed my own opposition to any demonstrations during the national anthem, I have previously stated that the ultimate decision rests with the team owners. Like any business owner, a NFL owner can insist that employees refrain from protests during employment hours and activities. However, this legislation would raise serious legal concerns and would likely not survive a legal challenge.
Smith says that he went to a game for the Colts and saw the protest and “it didn’t sit right with me.” One can certainly understand that response, but he then sought to require reimbursement without any express promise from the owners regarding the anthem. Indeed, the playing of the anthem has changed over the years.
Smith seems to believe that, because he would not punish the players, the bill would pass constitutional muster under a first amendment analysis. However, there remains the right of owners to allow or disallow such protests as well as problem of requiring payment on a non-contractual guarantee. Owners currently take the view that players may exercise their free speech rights before games. To penalize the exercise of such allowed demonstrations would still raise free speech grounds for a challenge. There is also the problem of exclusively penalizing football team owners rather than other teams or activities for such protests.
I fail to see the legal basis for a claim against owners based on tickets sold to fans and I believe a challenge to Smith’s legislation would succeed if it exclusively forced NFL owners to refund tickets for any protesting players on their teams.