Verify: Can NFL players get fired for protesting during the national anthem?

Do NFL players - and others - have the right to kneel? Do they have the right to stand? Do they have any ground to stand on when they take a knee? Our Marshall Zelinger went looking for answers.

VERIFY – YOU’VE GOT QUESTIONS, WE’LL FIND ANSWERS

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THE QUESTION

No matter which NFL game you tuned into on Sunday – including the Denver Broncos – you more than likely saw players and coaches kneeling, locking arms or even staying in the locker room during the pregame performance of “The Star-Spangled Banner.”

The protests were in response to President Donald Trump’s remarks – calling on NFL team owners to “fire or suspend” players who fail to stand for the national anthem.

But, team owners did the opposite – some even took to the field.

Team owners from the Jacksonville Jaguars, Philadelphia Eagles and Washington Redskins joined in on the sidelines.

9NEWS verified if the protests fall under a crime and if players can be fired for taking a knee. 

ARE THE PROTESTS A CRIME?

The U.S. Code - the same rule book with laws and punishments for bank robbers and drug dealers - also has specific laws about the American flag and the national anthem.

Title 36, section 301, spells out the law for conduct during a rendition of the national anthem.

When a flag is displayed, all other persons – referring to people not in uniform - should face the flag and stand at attention with their right hand over their heart.

There are penalties for violating the U.S. Code for robbing banks or dealing drugs, but there does not appear to be any penalties for violating the national anthem law.

Even so, the flag code section of U.S. law is quite strict.

Title 4, Chapter 1, Section 8, lists more than a dozen rules regarding respect for the flag, such as the following:

  • The flag should never be used as wearing apparel
  • It shouldn't be on paper napkins
  • Bunting needs to be blue, then white, then red - something both Presidents Trump and Obama have been photographed in front of incorrectly
  • The flag should never be used for advertising purposes

The short answer is, yes – players can be fired for not standing during the national anthem.

Per Whitney Traylor, an attorney and law professor at MSU Denver, at-will employees can be terminated for insubordination if the employer requires standing during the national anthem and they refuse.

But when it comes to the NFL and professional football players, it becomes a matter of what is in the contract, because they are not at-will employees.

“Many of those contracts have morality clauses, or other similar clauses that say something to the effect that if you bring disrepute onto the league, onto the team, that they can terminate you,” Traylor said.

Although currently there is no apparent penalty for violating the Flag Code, which involves standing during the national anthem, people can still be fired legally.

“The same reason that you can be fired because you come late for work, that’s not a crime, but it’s against the employer’s policy and the employer can then choose to terminate you for doing so,” Traylor said. “This is not about criminal conduct.”

He said even though people have a First Amendment right to freedom of speech, it applies to protection from the government. People working for a private employer generally do not have the same freedoms and protections.

There are, however, exceptions.

“If you were kneeling because you were protesting some employment issue, if you’re contesting your wages or your certain rights that you have as a worker, then yeah, there could be protections under the Fair Labor Standards Act or the National Labor Relations Act,” Traylor said.

But, he said if someone is kneeling out of dissatisfaction with things happening within the country, or politically, the employer could lawfully fire an employee.

People are also protected when it comes to religious principles – as a Denver Nuggets player demonstrated in the 90s.

Nuggets star Mahmoud Abdul-Rauf refused to stand during the national anthem, stating it conflicted with his Islamic beliefs. He eventually worked out a compromise with the NBA.

“You could have protections if the employer chooses to terminate you because you didn’t stand based on a religious belief,” Traylor said. “Then you have Title VII implications and Title VII gives you certain protections with regard to your religion.”

Thus, if someone did not stand due to a religious principle, even a private employer may not be able to fire them because it would violate Title VII.

TRUMP’S CALL TO ACTION

The players’ protest Sunday sparked from comments Trump made at a political rally Friday in Alabama, where he called such activists "sons of b------'' and said they should be "fired.''

Trump continued to make statements via twitter throughout the weekend, pressuring the league to fire players who take a knee during the anthem. 

Trump later called on the NFL to change its policy, and fans to refuse to go to games “until players stop disrespecting our Flag & Country,” he said in a tweet - adding, “you will see change take place fast. Fire or suspend!”

STATEMENT FROM BRONCOS PRESIDENT/CEO

9NEWS previously reported about half of the Broncos players and several staff members took a knee during the national anthem before the Sunday game against the Buffalo Bills.

The Broncos President/CEO Joe Ellis released a statement Saturday night, part of which said, “As an organization, we could not be more proud, appreciative and grateful for our players. We'll continue to support them and work together to advocate for values of respect, diversity and inclusion."

According to The Washington Post, “All but two of the NFL’s 32 team owners and CEOs issued statements Saturday night and through Sunday in response to Trump’s crusade against protesting NFL players.”

OTHER REACTION

On Monday, Phil Long Dealerships told 9NEWS it doesn't want us to use its commercials with Von Miller anymore.

The statement in part said, “It is important to state that we haven't fired Von. We are in the middle of contract renewal and this weekend’s events remind us that sometimes we feel that we best represent ourselves. We support Von and his first amendment rights, we know Von and he's a good person. He donated a police car to his hometown police dept. All that notwithstanding when we bring in celebrities to represent us we run the risk of being misrepresented.”

During a Broncos news conference, head coach Vance Joseph addressed the national anthem protests - stating politics and football do not mix. He said their job is to win football games.

But, he did make an interesting comparison.

“An NFL locker room, I think it's a perfect example of what our country should be,” Joseph said. “You have guys from all sorts of families and backgrounds that get along great in the locker room.  So how we live should be an example to the rest of the country of how they should live as far as ignoring color and personalities and any differences.  If you're a good person and I'm a good person let's get along.”

© 2017 KUSA-TV


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