NFL Protests: Legal Standpoint

By Caroline Mathews, Trending Writer

Colin Kaepernick, the ex-49ers quarterback, started the NFL protests against racial injustice by kneeling through the national anthem and sparked a national debate regarding the freedom of speech in the workplace. The free-agent was not offered a contract by any teams, and has now filed a grievance against the NFL claiming he is the victim of a group boycott by team owners for punishing him professionally due to his political views—but does he have a legal leg to stand on?

Title 36, Section 301 of the United States Code defines the Star-Spangled Banner as the national anthem. The section also outlines expected etiquette during the rendition of the anthem when the flag is displayed:

a) all present uniformed members of the Armed Forces should stand at attention,

b) all members of the Armed Forces and veterans who are not in uniform may render the same military salute as those in uniform, and

c) all other persons should remove their headdress and hold it with their right hand over their heart and stand at attention.

Legal flag code, however, is simply a suggestion of conduct during the Star-Spangled Banner. The code, therefore, is unenforceable and there are no legal repercussions for breaching it. In fact, the First Amendment prohibits Congress from passing any law that infringes upon a citizen’s right to the freedom of expression.

The legal crux of the NFL protest controversy, however, is whether or not a person’s fundamental right to freedom of speech is protected at work. If you are employed by the private-sector—like the NFL—the short-answer is no. A non-governmental employee does not have a “right” to protest while on the job. Without an employer’s consent to protest, employees stand the risk of facing consequences—including separation or suspension from employment—due to expectation of appropriate conduct. Essentially, kneeling through the anthem is legally viewed as an in-house workplace problem for the private sector. While NFL team owners have the legal right to prohibit kneeling during the anthem, they have seemingly defended the players and no league-wide rule has been created on the matter.

The heart of Kaepernick’s grievance is the claim that he is being denied employment despite exceptional qualification. While a good argument can be made, he must provide concrete evidence that two- or more- teams have colluded in some way to deprive him of signing with an NFL franchise to punish him for his political stance or to discourage other players from following his example.

Recently, it has been reported that Kaepernick’s primary focus is on being a quarterback. He has neither confirmed nor denied the allegation that he will stand for the anthem if given the opportunity to play again. Perhaps during his time away from the league, Kaepernick will consider registering to vote—as he has never registered or participated in any election since turning 18 in 2005—and act on his political concerns.


A version of this article appeared in the Tuesday, October 24th print edition.

Contact Caroline at

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