So by now you have all heard that Jerry “Jerruh” Jones intends to bench any player that does not stand for the National Anthem (ironic that the punishment for not standing is being forced to “sit” out the game).  Jerry asserts his ability to do so is rooted in NFL rules.  But is it?  It’s not in the collective bargaining agreement.  It’s not even in the official NFL rules.  Rather to the extent this “rule” exists at all, it appears merely in the NFL Game Operations Manual that is distributed separately from the league’s official rule book.

BUT – even this “rule” does not say that players “MUST” stand, but rather simply that they “SHOULD” stand – and further that a “failure to be on the field by the start of the national anthem MAY “result in disciplinary action.”  That’s a lot of soft and permissive language and leads to an easy argument for the NFLPA that if a player is on the field by the start of that national anthem – even if he is kneeling – then he has fully complied since “should” is not mandatory language. 

The NFL knows this and it’s press conference dance today was deft (and perhaps a preliminary shot off Jerruh’s bow).   Today the NFL’s Communications Director, Joe Lockhart, admitted that the emperor has no clothes.  He acknowledged that the policy actually only says that players “should” stand, not that they “must” stand.  More significantly, he declined to answer whether the league believes the current rule allows teams to punish players for not standing.  And also significantly, he deferred on the question of whether the change to make the rule mandatory would require collective bargaining, simply stating that “I don’t believe that the anthem per se is an issue that’s collectively bargained.”

If the League follows Jerruh down his misinformed path, it will face real challenges:

1.)  Under US Labor law, changing a rule to allow employees to be disciplined for violations of that rule requires collective bargaining, unless the discretion to do so has already been bargained away here.  There has been no suggestion that it has.

2.)  Accordingly, while Jerruh may be able to sit a player – he will still have to pay him – losing significant leverage as a result.

3.)  The National Labor Relations Act also protects employees who engage in lawful “concerted activity” – which collectively kneeling for the anthem might well be deemed to be.  Accordingly, enforcing Jerruh’s “rule” runs the risk of an unfair labor practice charge with the NLRB and a finding that federal law was violated. 

4.)  Finally, should the owners decide to rely upon the current Article 46 of the CBA and its rule prohibiting “conduct detrimental to the integrity of, or public confidence in, the game of professional football,” they would face an uphill battle as it stretches credibility to suggest that the anthem protests affect the game on the field or the public’s confidence in the integrity of those games at all.

So if the NFL follows Jerruh’s lead it is in for a headache and a world of hurt.  It can certainly try to change the rules when the current CBA expires after the 2020 season – but it’s a bit of a fool’s errand to try to do so before then.  But Jerruh’s been a fool before . . .