Armbands or Taking a Knee?

Peaceful Protesting and the Legal Perspective of Administrative Silencing

Asha Fields

North Carolina Agricultural And Technical State University

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The first amendment establishes the many freedoms that we are afforded to us as

Americans. The First Amendment (n.d.) states:

“​Congress shall make no law respecting an establishment of religion, or prohibiting the

free exercise thereof, or abridging the freedom of speech, or of the press, or the right of

the people peaceably to assemble, and to petition the government for a redress of

grievances.​”

It may seem easy to interrupt the words that are written in the constitution, but looking at the

history books, it doesn’t seem to be that easy. Many cases have been brought to court disputing

an individual or group’s first amendment rights. At times it seems that those freedoms are

constantly being impeded upon.

In the case of Tinker vs Des Moines Independent Community School, 1969, ​“Three

public school students wore black armbands to school to protest the Vietnam War. They were

suspended from school for refusing to remove them.” (​Your 1st Amendment Rights n.d.​) The

simple (non-violent) gesture of wearing a black armband caused such a stir and made a lasting

statement to protest a war that three students did not agree with. The court ruled that the school

did violate the students’ rights. This situation runs semi-parallel to the demonstration done by

Colin Kapernick when he decided to take a knee to bring attention to the unjust treatment of

black and brown men by law enforcement. Looking at the similarities between how both

situations were handled, it is hard to ignore the fact of how Colin Kaepernick was treated after

his choice to take a knee during the anthem.

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The NFL (National Football League) franchises are comprised of private companies, and

they are technically allowed to take any action they want against their employees that they see

fit. But the players are represented by unions, which means they have every right to take legal

actions against the league if they felt like there was wrongdoing taking place. “​Pro football

players also perform on game day at sports stadiums that are financed by public, tax-payer

money.” (Bombay, 2017) With that being the case, should football players be allowed to

exercise their first amendment rights? According to Bombay (2017)

“A Marquette Law Review article from 2010 made an argument that a stadium’s field as

a public forum for athletes is an unsettled issue. Its author, Marquette Law grad Nick

DeSiato, concluded that a determination of a sports stadium as a public space with First

Amendment rights is an “imprecise science” subject to different interpretations. While a

stadium can be funded by public money, the private sports club using it must be

considered a “state actor” for some First Amendment requirements to apply to permitted

activities inside the stadium. (In most cases, the First Amendment applies to government

actions, not actions taken by private companies.)”

Since football stadiums can be funded by the public, it would be easy to think that players would

have every right to protest in a peaceful manner. But those stadiums are occupied by private

sports franchises, and those entities do not want anything to jeopardize their bottom line by

offending their largest audience.​ “The NFL has also worried that the protests are unpopular with

fans, a theory that has been backed up in polls, although polling also shows significant racial and

partisan divides in opinion over the protests.” (Lockhart, 2019) ​They would do anything to

protect their bottom line.

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​ ​While NFL teams are not obligated to keep the players as employees, they run the risk of

getting sued for violating players’ rights and discrimination cases getting brought up against

them. Bombay’s (2017) article stated the following:

“An NFL team that fired a player for protesting would not only need to deal with the

players’ union and the arbitration process, but the terminated player could file a

discrimination complaint with the Equal Employment Opportunity Commission or

possibly file a defamation lawsuit, McCann said.”

With lawsuits comes bad press, and some owners may not want that headache to affect their

clubhouse, with threats of litigation. “The resistance from the NFL players’ union would be

significant.” (Bombay, 2017) With the case of Colin Kaepernick. He felt like he had not been

treated right after his protest and filed suit along with the NFL Player Association (who

advocates for the football players in the league).

The players are at the mercy of the owner, and if they step out of line in their eyes then it

is very hard to combat unfair treatment. ​ ​“...Kaepernick’s collusion grievance was also tied up in

the owner-oriented nature of the NFL, which affords little power or recourse to its players.”

(Lockhart, 2019) The players have very little control besides being a part of the players union.

The NFL made a statement after the protest had taken place which said, “players are

encouraged but not required to stand during the playing of the national anthem.”

(TheUndefeated, 2016). One can not read that statement and not give a side-eye to the NFL

because if standing for the national anthem is not a requirement, then why would nobody pick up

a contract with Colin? Even though NFL owners have the right to not put Colin on any team,
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they can’t ignore the fact that this entire situation puts a strain on the league for the foreseeable

future. Lockhart (2019) stated in an article

“Trump has eagerly claimed credit for Kaepernick no longer playing football and

suggested that the NFL impose strict penalties on players who continue to protest, but

that doesn’t necessarily imply he colluded with the league or team owners.​ ​After all,

Trump, despite his earlier ambitions, is not an owner of an NFL team.”

Even though President Trump is not an owner of an NFL team, having the President of the

United States vocalizing to have a citizen's right to protest is very concerning. The President of

the free world should not be making comments stating that he does not want a football player on

the field for peacefully protesting. The Lockhart (2019) article continued to state the following:

“In May 2018, the NFL announced (and later suspended) a new policy that would require

players to stand on the field for the anthem or wait for off-field until it was over.

According to ESPN, the desire to pass this rule was so strong that NFL owners did not

even wait for a formal vote, instead relying on a hands vote to pass the anthem policy.

The move has frustrated the Players Association, which entered talks with NFL execs in

July 2018 in the hopes of creating a more agreeable anthem policy.”

The NFL stated that standing for the anthem was not required and if it does not specifically say

in the contracts that player’s are not allowed to protest during the anthem. Then technically the

league can not make the decision that they did towards Colin. Plus a formal vote did not

necessarily take place to make it a required rule. The word was just passed down through the

sports clubhouse.
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Three students decided to take a stand against something they deemed to be unjust with a

simple gesture, wearing a black armband. In 2016, racial tensions seemed to have reached a

boiling point in this country, and Colin decided to take a knee during the national anthem. Both

were very simple and peaceful yet both parties were punished harshly. In the case of the students,

they were able to seek their claim to the courts and were proven to be justified. But with Colin

Kaepernick’s case being settled with the NFL and the documents being closed, we may never

know the whole truth about how or if the NFL was involved with unjustly punishing a citizen for

exercising their constitutional right to freedom of expression.

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Work Cited

Bomboy, S. (2017, September 25). The First Amendment and restricting professional athlete
protests. Retrieved February 24, 2020, from
https://constitutioncenter.org/blog/the-first-amendment-and-restricting-professional-athlet
e-protests
First Amendment. (n.d.). Retrieved February 23, 2020, from
https://www.law.cornell.edu/constitution/first_amendment
Lockhart, P. R. (2019, February 15). Colin Kaepernick's collusion grievance against the NFL
explained. Retrieved February 24, 2020, from
https://www.vox.com/identities/2018/9/6/17820158/colin-kaepernick-eric-reid-collusion-
grievance-protest-settlement
TheUndefeated. (2016, September 3). Colin Kaepernick protests the anthem over the treatment
of minorities. Retrieved February 23, 2020, from
https://theundefeated.com/features/colin-kaepernick-protests-anthem-over-treatment-of-
minorities/
Your 1st Amendment Rights. (n.d.). Retrieved February 24, 2020, from
https://judiciallearningcenter.org/your-1st-amendment-rights/