NFL's Inconsistent Approach to the National Anthem Policy May Hurt Collusion Case

Photo Credit: "Collision vs Collusion," Thomas Hawk, Flickr

Article below by Mike Florio.  Very useful analysis by the former labor and employment attorney turned sports journalist, on what must be proven from the legal perspective to sustain a successful charge of collusion.  Much has been made about the lack of a mandatory requirement that players stand for the national anthem in contrast to, say the National Basketball Association. The response of the NFL, including Roger Goodell and various owners when Kaepernick started kneeling as one of support for his ability to do so.  This was unambiguous, even amid language suggesting that standing would be the preferred course of action. This allowance was likely based partially upon the fact that the operations manual, which entered the mainstream discourse thanks to a discussion between Jerry Jones and POTUS, had permissive language about conduct during the anthem.  In any event, what was not overtly forbidden has clearly been shown to be forbidden in practice given the banishment for those leading the protests. 

Given the recent uptick in news regarding the anthem controversy, it’s time to address some of the fundamental questions relating to the situation.

The goal of this article is to take a fairly complicated and polarizing societal question and analyze it, objectively and thoroughly, from the perspective of labor and employment law. (For those wondering why they’d be inclined to read a legal analysis from some Internet hack who writes about football, that’s a very fair question. I practiced law for 18 years, specializing over the final 14 or so in matters of labor and employment law, both from the employer’s perspective and from the employee’s perspective.)

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