Last week the NFL released its new policy to try to resolve the National Anthem controversy. Players can choose to stay in the locker room during the anthem, but if they come on the field they have to stand and show respect for the flag and the anthem.
According to NFL.com, “Individual clubs have the power to set their own policies to ensure the anthem is being respected during any on-field action. If a player chooses to protest on the field during the anthem, the NFL will fine the team. In addition, franchises have the ability to potentially fine players.”
In trying to find a safe spot for everyone, the NFL has pleased no one, and the policy raises more questions than it answers.
Team owners will have to decide how to treat players who come out for the anthem, but still protest. Will players who stand for the anthem be viewed as more patriotic than those who remain in the locker room? Will players who protest during the anthem be treated differently depending on which team they play for? Should a player’s position on the anthem be part of their salary negotiations with a team?
The NFL may not have asked for this controversy, but it did lay the groundwork. The NFL, more than any other professional league, has made patriotism part of its brand. Giant flags that cover the field, plenty of salutes to the military and flyovers have created a strong link between America’s biggest sport and all things red, white and blue.
Additionally, as the New York Times reports, “It (the NFL) has accepted hundreds of thousands of dollars from the Department of Defense to stage tributes to members of the military at games. The government also paid for on-field color guards and ceremonies where soldiers enlisted or re-enlisted in front of thousands of fans.”
Even the most successful team of the last decade is named the Patriots!
President Trump has not helped. In fact, the anthem protests last fall were dying down until Trump encouraged NFL owners to fire kneeling players. He added more fuel last week when he said of the policy change, “I don’t think people should be staying in the locker rooms, but still I think it’s good. You have to stand proudly for the National Anthem, or you shouldn’t be playing, you shouldn’t be there. Maybe you shouldn’t be in the country.”
Fortunately, our country does not have a loyalty test. As Supreme Court Justice Robert Jackson wrote in the landmark case of West Virginia State Board of Education v. Barnett, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”
That was a First Amendment case and NFL protests are not exactly a constitutional issue since these are private employees. However, the government’s weighty hand is present when the President of the United States suggests someone should be fired or run out of the country.
So we will see what happens when the NFL season arrives, and the first score of the game will have to be which team had more players on the field for the anthem.