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NFL Anthem policy on hold while league, NFLPA continue discussions

The NFL Players Association and the league have announced that the Anthem policy instituted in May has been put on hold while the two sides continue discussing the policy. The NFLPA filed a grievance earlier this month, but also said that they had agreed with the owners to try and find a solution before proceeding to litigation.

The two sides offered up this statement Thursday evening.

The NFL and NFLPA, through recent discussions, have been working on a resolution to the anthem issue. In order to allow this constructive dialogue to continue, we have come to a standstill agreement on the NFLPA’s grievance and on the NFL’s anthem policy. No new rules relating to the anthem will be issued or enforced for the next several weeks while these confidential discussions are ongoing.

The NFL and NFLPA reflect the great values of America, which are repeatedly demonstrated by the many players doing extraordinary work in communities across our country to promote equality, fairness and justice.

Our shared focus will remain on finding a solution to the anthem issue through mutual, good faith commitments, outside of litigation.

NFL owners announced a new policy in May that would require players and team/league personnel either stand for the National Anthem, or stay in the locker room until the conclusion of the Anthem performance. If players or other personnel were on the field and did not, “stand and show respect for the flag and the Anthem,” the team would be fined, and the team could in turn discipline the person or persons disobeying the rule.

Things got messy earlier on Thursday when the Miami Dolphins were reportedly set to institute rules that could result in fines and/or up to four game suspensions for violating the rule. However, there was significant confusion about what was going on. Ian Rapoport reported that the NFL was requiring every team submit conduct rules for the National Anthem before players reported to training camp. Dolphins rookies reported on Wednesday and so the team submitted what they later described as a placeholder with all options on the table.

Any team punishment of players would fall under the “conduct detrimental” rule that allows for a team to suspend a player up to four games, or fine them one game check. NFL Network’s Mike Silver reported, “it is unrealistic that any player would be suspended four games for kneeling during the anthem if the policy was enforced.”

Whatever the Dolphins did or intended to do with their policy, this shows just how much of a problem the NFL created by unilaterally imposing this rule without consulting the players’ union. Some of the team rules would likely overlap, but we’ve already heard from some teams that will choose not to discipline their players. Different working conditions opens the door for a host of lawsuits at some point.

On the other hand, if the owners and players negotiate a policy, it significantly reduces the chance of litigation. When labor and management negotiate on a topic and agree to terms on certain conditions, courts will usually respect that in the face of a lawsuit. There are exceptions, but if an Anthem policy is mutually agreed upon, a lawsuit is likely to be thrown out fairly quickly.

The NFL could have finessed this with a scalpel, but instead decided to pound away with a hammer. The NBA has a rule requiring players stand during the Anthem, but players have felt sufficiently empowered and respected in other ways so they have not felt the need to push back specifically against that rule.

NFL owners treat football players decidedly different, effectively as property. There is a lack of respect that shows when they unilaterally impose a policy like this. They could potentially win a legal suit depending on how the court views the categorization of the policy, but that will do nothing to improve relations and create an atmosphere of mutual respect. Some owners might prefer creating a better atmosphere, but until recently, it has felt like the majority of owners either don’t want that, or are not going to speak up against the more powerful owners.

This decision to have a discussion is a step in the right direction. Part of this will come down to whether or not NFL owners are comfortable taking heat from Donald Trump on how they handle this. Miami Dolphins owner Stephen Ross was supportive of his kneeling players, but in his deposition for Colin Kaepernick’s lawsuit, he acknowledged that Trump’s comments calling the players sons of bitches changed the game for him. Trump criticized the new policy after the fact, and the NFL is not going to get out of his cross-hairs anytime soon. This is red meat for Trump, and the owners are going to need to decide if they’re willing to stand up for their players or cave.