On July 10, the National Football League Players Association (NFLPA, Players Association) filed a grievance that challenged the League’s (NFL’s) recently-enacted policy of disallowing players from protesting the national anthem in a public manner. See, e.g., John Delcos, “NFL And Players Association Expected to Battle Over Anthem Issue,” Forbes, Jul. 10, 2018. The NFLPA argued that the League’s course of action, which was taken without consulting the Players Association, “is inconsistent with the collective bargaining agreement and infringes on player rights,” Id. This article examines this legal battle and discusses how expert witnesses can play an essential part in resolving the dispute.
In May, the NFL approved a policy that allows “players to protest during the national anthem by staying in the locker room but forbid[s] them from sitting or taking a knee if they’re on the field.” Morning Journal (via Associated Press), “Sports Briefing,” Jul. 19, 2018. The NFLPA is considered a union, and its grievance falls short of an actual lawsuit, though such an action could ensue if the grievance is not resolved.
Before filing its grievance, the NFLPA claims it tried to resolve the issue against the NFL amicably and through negotiation. See, e.g., Delcos, supra. According to the Players Association, “[i]n advance of our filing today, we proposed to the NFL to begin confidential discussions with the NFLPA Executive Committee to find a solution to this issue instead of immediately proceeding with litigation. The NFL has agreed to proceed with those discussions and we look forward to starting them soon.” Id. Both parties have since declined to comment on that statement. Id.
The current NFL policy is that players and team personnel are to stand on the sidelines during the anthem, and those who wish to protest must leave the field and go to their locker rooms. See id. Individuals who follow this rule and are in their locker rooms will not, under the NFL edict, be penalized. See id. However, if a player or other team member kneels during the anthem or otherwise protests during the anthem and is on the sidelines/field, the team itself is subject to fines. See id.
The distinction between levying punishments on a team versus an individual is important from a legal angle. If the NFL were to assess a fine against an individual who disregarded its policy on the national anthem, the NFLPA could file a grievance and/or sue the League for violating the collective bargaining agreement (CBA) that is in place. See id.
As of today and since the grievance was filed, the NFL put a freeze on its anthem rule. See, e.g., Margaret Hartmann, “NFL Anthem Protest Policy Put on Hold Under Agreement With Players’ Union,” New York Magazine, Jul. 20, 2018. According to one analyst, the NFL and NFLPA are attempting to settle the dispute and avoid litigation. See id. Several scenarios may arise out of the existing situation, and both parties will be aided tremendously by expert witnesses.
(1). The Matter is Resolved via Current Negotiations: If the NFLPA and the League come to an agreement and avert the grievance and/or litigation processes, expert consultants may be indispensable to both parties. There are competing interests at stake, and witnesses with expertise in unions and collective bargaining, sports and the NFL, First Amendment and/or related speech and expression issues, the rights and duties of individual agents versus teams, employment law, and other matters can help advise attorneys on how to best proceed. Such consultants can offer objective insight into how to maximize the goals of a party while accommodating some of the opposing side’s wishes and achieving a compromise.
(2).The Grievance Goes Forward: If the NFL & Players Association cannot come to an agreement, the grievance will likely proceed, and arbitration would determine the result of the conflict. Associated Press, “NFL players union files grievance over anthem policy,” Reported via ABC News, Jul. 10, 2018, at https://abcnews.go.com/Sports/wireStory/nfl-players-union-files-grievance-anthem-policy-56484043 (last visited Jul. 20, 2018). In that event, both sides may require consulting and testifying experts to advance their claims. Such experts can help persuade the independent arbitrator that their side’s assertions are correct and provide evidence to substantiate legal claims.
(3). A Lawsuit is Filed: In the event the parties cannot reach an agreement or are dissatisfied with the outcome of arbitration, several commentators have suggested that litigation might ensue. See, e.g., John Delcos, supra; See also Margaret Hartmann, supra. If a lawsuit is filed, expert witnesses may hold the key to the success of the prevailing party. Their testimony can assist triers of fact in resolving competing claims and weighing the pros and cons of a particular decision. Their role as consultants is also quite valuable, as consulting experts can offer strategic advice and offer insight into the strengths and weaknesses of certain claims.
Since the NFL’s ruling, over 200 players protested during the anthem. See, e.g., Associated Press, supra. This is a national controversy, and large groups of people have followed the events pertaining to the matter, from legal analysts to sports fans. How the issue will be resolved is in question, but the best way to achieve resolution is not: expert witnesses provide attorneys and clients aptitude and guidance to help achieve desirable outcomes and, if possible, bring about a satisfactory compromise.