Finally, after two weeks of irrational delirium and demagoguery over a Supreme Court opening, we can focus on the rational issue of … the speech rights of professional athletes. NFL team owners thought they’d settled the issue with a rule change in their spring meetings, requiring any personnel on the field to stand but making their presence voluntary — and assessing team fines rather than penalizing individuals. However, the union didn’t get consulted on those changes and have now filed a grievance alleging that the change violates the collective bargaining agreement:
The NFL Player’s Association filed a grievance on Tuesday challenging the NFL’s new policy on player protests during the pre-game national anthem, saying the rule infringes on player rights.
“The union’s claim is that this new policy, imposed by the NFL’s governing body without consultation with the NFLPA, is inconsistent with the collective bargaining agreement and infringes on player rights,” the NFLPA said in a statement.
“In advance of our filing today, we proposed to the NFL to begin confidential discussions with the NFLPA Executive Committee to find a solution to this issue instead of immediately proceeding with litigation. The NFL has agreed to proceed with those discussions and we look forward to starting them soon.”
The rights-infringment argument is rather weak, as it exists in tandem with the NFL’s rights to present its product as it sees fit. Remember that this is the same league that mercilessly enforces its uniform rules, levying hefty fines against those who decide to engage in a little “free speech” through their game wear. When the Dallas Cowboys wanted to honor five police officers killed during a Black Lives Matter protest, for instance, Goodell said no can do. The NFLPA hasn’t pushed back against that, probably because most of those expressions are less organized and less political (usually, anyway). That lack of response on other speech issues might cut against their free-speech argument, if that ever came to court.
The CBA issue, however, is a bigger problem for the NFL. The rule change was all but calculated to keep the players from having any role in resolving the anthem-protest standoff. That’s why the owners agreed to fine the club and not any of the players:
Here is the NFL’s new national anthem policy: pic.twitter.com/ybjKoO6E3s
— Ian Rapoport (@RapSheet) May 23, 2018
The strategy here was pretty clear; as long as the players don’t get fined, they don’t have standing to file a grievance. However, the rule was obviously intended to at least indirectly change the terms of their employment and their conduct on the field, which is a CBA-type issue. It was a trick play, basically, and the players easily sniffed it out. The NFLPA raised the objection at the time, and the only real question is why it took them more than a month to file the grievance.
So will the owners hold out and force a showdown? Please. At least according to the NFLPA, the owners have begun capitulating on their bluff already:
“In advance of our filing today, we proposed to the NFL to begin confidential discussions with the NFLPA Executive Committee to find a solution to this issue instead of immediately proceeding with litigation,” NFLPA said in its statement. “The NFL has agreed to proceed with those discussions and we look forward to starting them soon.”
Well, one cheer for recognizing the obvious futility in fighting this, I suppose. Too bad the owners didn’t recognize the obvious futility of this rule before they passed it. It did nothing to disincentivize the behavior they wanted to mitigate, with fines against the owners and no penalties at all for players. Rather than solve the problem, the rule change instead would have made pre-game field appearances a source of endless speculation in the media.
The league has two options for dealing with this issue short of reaching an accommodation with the NFLPA. One is to bar the teams from taking the field until after the anthem altogether, and the other is to ignore it and let the public get tired of talking about it. Their spring meeting rule change only made it worse by giving everyone more reason to talk about it and giving the players an obvious opening for leverage on the CBA.
Say, that contract extension for Roger Goodell is really working out nicely, eh?