January 29, 2018

by Gordon E. Bosserman

Irrespective of your opinion regarding the actions of some professional football players during the playing of the Star-Spangled Banner before games, you might find it interesting to know that there are also employment law issues involved in the action. Many professional football players, beginning with Colin Kaepernick, then with the San Francisco Forty-Niners, have been taking a knee during the playing of the National Anthem as a political expression. Recently, Jerry Jones, the owner of the Dallas Cowboys, has said that he will not allow any player who does not stand for the playing of the National Anthem to play, prompting a union in Texas to file a charge with the National Labor Relations Board claiming that Jones’ action illegally restricts players’ rights under federal labor law.

The players in the National Football League belong to a union who represents them in connection with issues such as those at play here. Various federal and state laws also limit the ability of an employer of a non-union employee to control, under certain circumstances, that employee’s political expression. (This subject was covered in some detail in the last Update. Please let me know if you would like a copy of it.) It is also interesting to note that the NLRB views some communications which a non-union employee may make using social media as protected speech when it even remotely relates to the terms and conditions of his or her employment.