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Breaking News Alert This Week In Lawfare Land: What Happens Next?

The NFL Banned The Cowboys From Honoring Police. Will It Do The Same To Seahawks Anthem Boycotters?


As we enter the first weekend of the NFL season, the Internet is abuzz with claims that the Seattle Seahawks are planning to protest the singing of the national anthem before their game on Sunday. The Broncos’ Brandon Marshall also refused to stand during the national anthem before last night’s season-opener.

These actions mirror a similar protest by 49ers quarterback Colin Kaepernick before pre-season games over the past two weeks. Kaepernick’s protest was largely directed at police. The quarterback also chose to wear socks with pigs in police hats to practice.

On Wednesday, Seahawks wide receiver Doug Baldwin Jr. tweeted that critics of the Seahawks plans to protest the anthem couldn’t think logically:

Thursday Baldwin walked back that tweet a bit, describing a vague “demonstration of unity” before Sunday’s game.

Whatever the Seahawks have planned for Sunday, the silence from the NFL over this matter has been deafening. As of this writing, the NFL has made no statement on the Seahawks plans. In response to Kaepernick’s protest, NFL Commissioner Roger Goodell said, “I support our players when they want to see change in society, and we don’t live in a perfect society. …On the other hand, we believe very strongly in patriotism in the NFL. I personally believe very strongly in that.”

NFL Puts Its Thumb on the Scale

Goodell’s statement suggests players are free to express their social or political viewpoints while in uniform on the field. But another incident this summer showed the NFL taking a much dimmer view of mixing politics and football.

After the tragic murders of five Dallas police officers in July, the Dallas Cowboys asked the NFL if players could wear a decal on their helmets commemorating the officers’ sacrifice. In this case, the NFL did not support its players when they wanted to see change in society. When the Cowboys wanted to send the message that police officers should not be hunted and assassinated, the NFL gave a clear answer: no.

When actor James Woods pointed out on Twitter that the NFL allowed Kaepernick’s protest but did not allow the Cowboys to honor police, Politifact found his claim “true.” They pointed to a league rule that reads: “The League will not grant permission for any club or player to wear, display, or otherwise convey messages, through helmet decals, arm bands, jersey patches, or other items affixed to game uniforms or equipment, which relate to political activities or causes, other non-football events, causes or campaigns, or charitable causes or campaigns.”

On the one hand, rules are rules. On the other hand, each October the NFL honors breast cancer awareness month with players decked out in pink accoutrements for what is clearly a non-football cause. Perhaps celebrating police sacrifice is more political or controversial than fighting breast cancer, but clearly the league could have made an exception. It chose not to.

The NFL Has the Power to Stop This

This leads one to wonder if any rule would allow the NFL to ban players or teams from protesting during the national anthem. Seattle players have First Amendment rights, but so do Dallas players. Besides, the primary issue isn’t one of free speech, since the First Amendment applies only to government actions, and in this instance players are employees subject to private rules they agreed to in their contracts. The latest collective bargaining agreement between the Players Association and the NFL offers some guidance here. Article 51, section 6 says the following:

Public Statements: The NFLPA and the [National Football League] Management Council agree that each will use reasonable efforts to curtail public comments by Club personnel or players which express criticism of any club, its coach, or its operation and policy, or which tend to cast discredit upon a Club, a player or any other person involved in the operation of a Club, the NFL, the Management Council, or the NFLPA.

If it chose, the NFL could use Section 6 to bar players from criticizing the policy of playing the national anthem before games. Clearly, players protesting the anthem are also protesting the league’s decision to play it, and under the agreement the NFL has a right to stop them from doing so, not only during the anthem, but also during interviews.

Whether the NFL should use its authority to ban protests during or before games is a matter of debate. Whether they have the authority to do so is not: they do. The fact remains that while they chose to exercise their contractual right to stop the Cowboys from honoring dead police officers, they have chosen not to do so for those protesting the anthem.

When People Politicize Sports

The NFL and all sports have good reason for keeping politics out of their brand. People of all political stripes can come together for sports. One could easily imagine a situation in which the Cowboys became the conservative, police-supporting team while the Seahawks represent progressive values and support protests against police.

In Europe and South America this politicization of sport happens. Famously, Spanish powerhouses Barcelona and Real Madrid have represented different political factions for decades. In South America, Boca Juniors and River Plate have a similar history. This can lead to violent confrontations and a kind of enmity rarely associated with American sports. Unitas’ conservative Colts versus Namath’s libertine Jets and Joe Frazier’s fights with Muhammad Ali had political undertones, but these are rare exceptions.

So why would the NFL stick to its guns and disallow the Cowboys’ message of support for police while it allows players to protest police by refusing to stand for the national anthem? The answer is likely that while there was some anger at the Cowboys decision, the NFL knew any action against anti-police protestors would meet a liberal media firestorm. Put simply, all the NFL cares about is money and image. Stopping the Cowboys homage didn’t affect that, yet stopping the anti-anthem antics very well might.

There is one more important point to note about the Seahawks’ players “demonstration of unity.” This Sunday is not only the first of the regular season, it is also the fifteenth anniversary of the terrorist attack of September 11, 2001. Sixty officers of the Port Authority of New York, New Jersey Police Department, and the New York Police Department died in the terror attack.

Kaepernick assures us wearing socks with pigs in police caps wasn’t meant to refer to all police, just as racists regularly assure us they aren’t ever talking about all black or brown people. Presumably he and the Seahawks’ players admit there are some good ones. One hopes that everyone respects the sacrifices made by men in civic uniform 15 years ago.

Of all the days of the year, September 11 should be set aside to honor those who serve and protect us, those prepared to run into falling towers to protect their fellow man. If honoring fallen police officers is too political to be part of an NFL game, then the league should rethink whether protesting police during the national anthem should be allowed. If they do allow it, they cannot hide behind the First Amendment. It will be their choice, plain and simple, and a choice we should not soon forget.