Given the recent uptick in news regarding the anthem controversy Peyton Manning Jersey , it’s time to address some of the fundamental questions relating to the situation.
The goal of this article is to take a fairly complicated and polarizing societal question and analyze it, objectively and thoroughly, from the perspective of labor and employment law. (For those wondering why they’d be inclined to read a legal analysis from some Internet hack who writes about football, that’s a very fair question. I practiced law for 18 years, specializing over the final 14 or so in matters of labor and employment law, both from the employer’s perspective and from the employee’s perspective.)
The first challenge for anyone considering this issue as a matter of labor and employment is far easier said than done: You need to set aside whatever your personal beliefs may be regarding NFL players protesting during the national anthem. Whether you like it, whether you hate it, or whether you land somewhere in between, if you forget your own feelings on the issue, you’ll be able to better understand the legal issues relevant to the situation.
Along these same lines, you need to forget about the question of whether anthem protests are “bad for business.” (Some presume that the protests have hurt the NFL’s business; the evidence, however, is inconclusive. Yes, TV ratings are down, but not as far down as TV ratings generally. Also, revenues — and in turn the salary cap — continue to rise. For the fifth straight year Frederik Andersen Jersey , the salary cap has increased by more than $10 million per team.)
Actually, let’s assume that the NFL’s teams subjectively have concluded that anthem protests are indeed “bad for business,” inconclusive evidence of a negative impact notwithstanding. If that’s the case, the question becomes whether the NFL can make hiring and firing decisions based on anthem protests that are determined to be “bad for business” under the principles that apply to the employment relationship between NFL teams and NFL players.
For any issue arising under the relationship between NFL teams and NFL players, the question begins with the Collective Bargaining Agreement. However, the Collective Bargaining Agreement between the NFL and the NFL Players Association says nothing about the national anthem. The rule regarding the anthem appears in the NFL’s game operations manual, which provides in pertinent part as follows:聽鈥淭he national anthem must be played before every NFL game, and all players must be on the sideline for the national anthem.聽During the national anthem, players on the field and bench area should stand at attention, face the flag, hold helmets in their left hand, and refrain from talking.”
This rule, adopted in 2009 as part of the league’s decision to move the players from the locker room to the sideline during the national anthem, was drafted by the NFL. By using “must” in connection with the playing of the anthem and the players’ presence on the sideline but the non-mandatory term “should” when referring to standing during the anthem, the NFL created a loophole in the policy, making it different from the NBA rule that mandates standing: Players must be on the sideline for the anthem Chiefs Authentic Jerseys , and players should (not must) stand.
When the anthem controversy first emerged in August 2016, the NFL could have quickly revised the language of the rule, or the NFL could have taken the position that “should” as a practical matter means “must” within the broader context of the rule. After all, the league has brought them out of the locker room not to protest during the playing of the national anthem but to be props in the broader effort to wrap The Shield (which looks a lot like the flag) in the flag.
The fact that the rule didn’t appear in the CBA (which is the product of comprehensive collective bargaining between the NFL and NFL Players Association regarding the terms of employment) most likely would have given the league the ability to unilaterally change the rule. In other words, the league possibly could have simply changed the rule on the spot, without talking to or bargaining with the union.
But that’s not what the league did. The NFL’s first comment on the matter was this:聽鈥淧layers are encouraged but not required to stand during the playing of the National Anthem.”
That was the moment the NFL confirmed that players have permission to sit, kneel, whatever during the anthem. And that was the moment that it became inappropriate to make hiring and firing decisions based on whether a player chooses to exercise the league-given right to not stand. After all, what good is any right in employment if exercising that right will get you fired?
When the anthem controversy reached new heights in September 2017, fueled by an attack on the NFL and protesting players by the President, the league did not change the rule. Instead, the league reiterated the fact that players have the right to protest, if they choose to do so.
鈥淒uring this past season, we received assurances from both Commissioner Roger Goodell and the Chairman of the Management Council, John Mara, that the right of players to demonstrate would be protected Youth Chris Herndon Jersey ,” the union said in a statement issued last month, after Dolphins owner Stephen Ross said that he would prohibit kneeling (and then backtracked). “We are glad that both the Houston Texans and Miami Dolphins have clarified their positions to be consistent with what was confirmed with our union leadership, and we expect all other NFL teams to maintain the same commitment to protecting those rights.鈥?(The NFL has at no time disputed the notion that Goodell and Mara provided assurances that the right of players to demonstrate would be protected.)
LOS ANGELES — Two things Clayton Kershaw clearly hates: Being on the disabled list and having pitch restrictions while on the mound.
The Los Angeles Dodgers‘ left-hander might be done with both when he takes the mound Tuesday against the Pittsburgh Pirates. Kershaw will be making his third start since coming off the disabled list for his most recent back injury and has been trending in a positive direction.
What Kershaw would like to see is more of the offense the Dodgers showed in Monday’s series opener, when the club scored 17 runs on 21 hits in an easy victory.
Tasked with slowing that offense at Dodger Stadium, while matching Kershaw pitch for pitch, will be Pirates right-hander Ian Nova.
If Kershaw is almost all the way back on top after an injury, Nova is there already. In four starts since coming off the DL because of a sprained right finger, Nova is 2-0 with a 1.75 ERA.
Kershaw is only this far along in his return from the DL because the Dodgers pulled a last-minute switch on June 23, and had him pitch in New York against the Mets instead of with Triple-A Oklahoma City on a rehab outing.
Kershaw threw 55 pitches against the Mets, giving up two runs on five hits over three innings. On June 28 against the Chicago Cubs, Kershaw was back at it, throwing 68 pitches while giving up one run on four hits over five innings.
A natural progression would have Kershaw at about 80 pitches on Tuesday, but Kershaw has a way of getting more out of himself when the situation requires it.
“I’ve proven that I’m healthy,” Kershaw told reporters after his most recent start. “So now, next time out I’m sure the restriction should hopefully be pretty close to off. (I will) get ready and just try to beat an opponent.”
Nova has thrown between 86 and 94 pitches in his four starts since coming off the DL and has given up one or no runs in three of those outings. The one where he did not was on Wednesday at New York. But he did hold the Mets to three runs over six innings, keeping the Pirates close enough to put together a ninth-inning rally for a victory.
That victory was part of a Pirates run where they won four of six games and took series at New York and San Diego. Sure there was a five-game losing streak before that Authentic Ryan Switzer Jersey , but going back even further, the Pirates had won four of five.
So even though they were roughed up by the Dodgers on Monday, the Pirates have learned the value of resiliency.
“We’re well aware of what we need to improve upon,” manager Clint Hurdle said, according to the Pittsburgh Post-Gazette. “We’re well aware of our monthly progress and then some of our monthly challenges. Love the fact that the game brings attention to specific areas, daily, weekly, monthly, and then I love to watch how some guys are able to fight and battle and work through it.”
Up next is a challenge against Kershaw, who is 2-3 with a 3.18 ERA in 11 career starts against Pittsburgh. The Pirates are one of two National League teams Kershaw has a losing record against in the regular season, along with the Philadelphia Phillies.
Nova knows his way around the Dodgers, going 1-0 with a 2.31 ERA in two starts, one in each of the previous two seasons.
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