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WASHINGTON — Jerry Jones may want to bench Dallas Cowboy players who don’t stand for the national anthem, but NFL owners could find themselves facing a First Amendment lawsuit if they punish football players or coaches for their protests after taking government money into the private business of professional football.
The NFL is a private business — and the First Amendment only protects Americans from free speech abuses from the government. But legal experts differ on whether pro teams who play in publicly-funded stadiums or who accepted government money in exchange for patriotic displays like the national anthem could find themselves legally exposed if they punish kneeling players.
The money exchanged between governments and pro football teams could mean that discipline enforced by the team could be “fairly attributed to a government entity, meaning the employer could not discipline someone for taking a political position,” Harvard Law School professor Mark Tushnet said.
A judge could find it “relevant that some of the stadiums have been constructed with public support and may get continuing public subsidies,” Tushnet said. “It may be relevant that some of these practices were instituted in cooperation with the national military.”
“If the government pays for the patriotic display and the firing is a result of the behavior being deemed insufficiently patriotic, it is conceivable that that a claim could then be articulated,” said Floyd Abrams, a First Amendment attorney in New York.
The NFL has been embroiled in controversy over players using the national anthem before games as a platform for protest. Former 49ers quarterback Colin Kaepernick started the movement last season when he refused to stand during the anthem to protest racial inequality and police brutality. Kaepernick remains unsigned and wants to resume his career, but other NFL players have picked up his cause and kneeled, sat or made other gestures during “The Star Spangled Banner.”
Jones, one of the NFL’s most powerful owners, has said the NFL can’t leave the impression that it tolerates players disrespecting the flag and said any Cowboys doing so will not play.
“If you do not honor and stand for the flag in a way that a lot of our fans think that you should, if that’s not the case, then you won’t play,” Jones said Tuesday on a Dallas radio station.
Public money is inextricably linked with the NFL. The vast majority of NFL stadiums were constructed or renovated with public money, including the Cowboys’ home in Arlington, Texas. The Taxpayer Protection Alliance rated AT&T Stadium as one of the most egregious abuses of taxpayer money, saying the cost to taxpayers has been about $444 million.
And the NFL was paid by the military for at least four seasons for its patriotic displays during pregame, as part of defense spending to market to potential recruits. After complaints from Arizona Sens. Jeff Flake and John McCain, the NFL in 2016 repaid the government more than $700,000 covering payments from four NFL seasons, 2012-2015, for activities including performances of the national anthem, full-field flag details and on-field color guard performances.
There is no guarantee that a First Amendment lawsuit would succeed against pro teams even if they have accepted government money, Tushnet said. Other legal experts dismiss the idea of any kind First Amendment lawsuit against NFL teams being successful. Rules for NFL player conduct are also spelled out in the league’s rulebook, personal conduct policy and the collective bargaining agreement.
“If it is a private stadium, it is not a public forum and the person imposing the rule is not a government actor,” said Stephen F. Ross, director of the Penn State University Institute for Sports Law, Policy, and Research. “Even in public stadia, you do not have the right to free speech.”
Public funding of stadiums doesn’t change that, Ross said. He compared the funds to when governments provide subsidies to move an auto plant from one state to another.
“That does not convert the auto plant into a public facility,” Ross said. “It might be bad public policy to subside public stadia, but it doesn’t make them a public forum where you have a right to engage in free speech.”
Some states have their own First Amendment-style protections, and they can include protection of political speech, Tushnet said. In the past, those protections have only protected people from being punished for belonging to certain political parties but a creative lawyer might try to argue it covers protesting football players, too, he said.
Wayne Giampietro, general counsel for the First Amendment Lawyers Association, said if teams are just renting fields from local government it doesn’t mean that the governmental entity has anything to do with how players are treated.
“I don’t think there’s enough governmental control over whatever goes on in the NFL, the NBA, the professional baseball teams, I don’t think there enough governmental involvement in putting on the games and everything to make the First Amendment apply to this situation,” Giamepietro said.
Jones portrayed his statement as an employment issue rather than a First Amendment issue, saying standing was in “the best interest of the Cowboys.”
“This is a workplace issue,” Jones said. “I don’t want there to be any misunderstanding as to where I want the personnel of the Cowboys to be when we’re at the No. 1 workplace we have, which is the field and the sideline on game day. And, so, again, I want to do everybody a service as I should in leading the team of saying let’s be real clear about what our expectations are.”
President Donald Trump has been pressuring NFL owners to discipline players who do not stand for the national anthem. Vice President Mike Pence walked out of an Indianapolis home game in protest of about a dozen San Francisco players who kneeled during the anthem. The president has tweeted several times since then to keep the issue in play, and said Pence’s walkout was at his request.
“It is about time that Roger Goodell of the NFL is finally demanding that all players STAND for our great National Anthem-RESPECT OUR COUNTRY,” Trump tweeted on Wednesday in response to news that NFL team owners and players would talk about the issue next week in previously scheduled owners’ meetings.
Commissioner Roger Goodell told club executives Tuesday in a memo obtained by The Associated Press that the anthem issue is dividing the league from its fans. He said the NFL needs “to move past this controversy.”