Ryan J. McGinty


This note addresses the ongoing controversial stance that was ignited when Colin Kaepernick refused to stand for the playing of the national anthem in protest of what he deems are wrongdoings against African Americans and minorities in the United States. The scope of this note does not surround Kaepernick himself, but rather the professional NFL football player in general. Specifically, players are entitled to the full rights of free expression and free speech as human beings and public figures, up and until the line where that right is abused on the field or “on the job,” thereby threatening an increase of injury to the NFL, team owners, and the public interest. With anti-American sentiment growing and only 52% of Americans that are “extremely proud” of their country, it is time to start coming together and it is time to appropriately mark that line aforementioned. Professional football players should have a heightened threshold of professional responsibilities that coincide with their elevated status on the field when performing in uniform, and in their professional setting. Through exploring an athlete’s freedoms of speech and expression under the Constitution and the National Labor Relations Act while simultaneously navigating through the world of player contracts and working conditions under the NFL Collective Bargaining Agreement, this note will portray a potential solution to the growing issue at hand that when multiplied can devastate the mission of the NFL, and effectually change how our nation’s youth perceive this great country.

Part II will lay the foundation of this analysis; by first giving the reader an inside look into the NFL’s corporate structure and the interrelations between the NFL League Office, NFL Executive Committee, and team owners. Then I will discuss the NFLPA, the power of unions, and the role of the NFLPA in collective bargaining for the interests of the NFL players. This section will also note the relevant sections of the current 2011 NFL CBA which governs the league. Part III will illustrate a successfully executed demonstration of free speech on the professional sports stage and then introduce the reader to the Kaepernick Stance and its continued effect on our society and popular culture during a major transition of government policy. Here, the facts surrounding the issue will be put on display in a time-line fashion along with notable reactions allowing for the reader to make an independent judgment call for or against the stance and manner at which it has been presented. Furthermore, insight into the impact of social media on political protesting will reveal why the Kaepernick Stance has grown so fast, so quick. Part IV will take the reader back in time and discuss the origins of the National Anthem as well as the right of free expression under the First and Fourteenth Amendment and its continued evolution in terms of its interpretation. Finally Part V will conclude this note with an argument and a proposed solution.