While attending a political rally on Friday, September 22, President Trump said that NFL players who engaged in protests by “taking a knee” should be fired. Two days later, Trump doubled-down on his earlier statement, and sent out a tweet stating that team owners should “fire or suspend” NFL players who participate in protests.
Following Trump’s tirade, dozens of NFL players chose to participate in protests either before or during the singing of the national anthem. And, in a surprising turn of events, some team owners have responded to Trump’s statements by linking arms with players on the field, suggesting that they support their players right to protest. Given the actions of the team owners, it doesn’t appear that any of the NFL players who have chosen to “take a knee” will be fired. But, this controversy does raise an interesting question. Can an owner fire a player for taking a knee?
In this country, an employer can terminate an employee for any reason or no reason, a good reason, a bad reason, or even a stupid reason. Of course, state and federal laws prevent an employer from terminating an employee for discriminatory reasons (such as the employee’s race, gender, age, national origin, religion) or because an employee is a whistleblower. However, there is no state or federal law that prevents an employer from regulating the speech of an employee during working hours.
What about the First Amendment? Doesn’t it protect the free speech rights of these players? No, the First Amendment only prevents the federal government from interfering with the free speech of citizens. The First Amendment simply does not prevent an employer from limiting the activities of employees during working hours. So, as long as the NFL players are protesting during working hours, their “free speech” do not protect them from termination.
On the other hand, all of the NFL players have written contracts with their teams. The terms of those contracts — which are not public — may limit the right of the teams to terminate an employee. Or, the contracts may sharply limit the conduct of the players on the field. (A few years ago the NFL denied the request of Pittsburg Steelers running back DeAngelo Williams’ to wear pink on his uniform to honor his mother who died of cancer, on the grounds that it would violate player uniform rules.) But, if the players’ contracts don’t protect their on-field conduct, then the owners are free to fire them for taking a knee on the field.