Could Kaepernik Invalidate the CBA?

[Bobsyouruncle]

is this accounting for people who have left the traditional TV delivery system and watch the games using other means?

because it appears numbers for traditional TV ratings are down across the board as Nielsen doesn't really take into account things like streaming, etc

Nielsen can do streaming.

Asking people why they stop watching is probably better than reading tea leaves anyway.

 

[Ring 6]

kaepernick was invited to the NFL, NFLPA, player, owner meeting designed to come up with things they can do to solve the problems they are protesting over and he did not show up.
Yeah, he is all about the cause

 

[QuantumMechanic]

CBA Article XYZ Section 1: All players will stand respectfully for the national anthem. Failure to do so will result in fines starting at $100,000 per incident and game suspensions after the 3rd incident.

True. However, courts will refuse to enforce a contract provision contrary to state or federal law. So if a player refused to stand because of his religious beliefs he would very likely have a good case to block the penalties under state and federal anti-discrimination employment laws since it would be very hard (IMHO) for the NFL to claim it would not be a reasonable accommodation to not require him to stand. And keep in mind that courts are pretty limited in their ability to declare what is or isn't a religious belief.

So if a clause like that ended up in the CBA I think the NFL would have a very tough time enforcing it against players who challenged it, especially if they said something like "************ was a champion of the oppressed and downtrodden and stood against injustice. My kneeling to protest the unjust treatment of blacks by the police is part of living up to my Christian beliefs."

(It's not a get out of jail free card, of course. For example, a player would almost certainly not be able to refuse to wear a helmet because of their religious beliefs because not wearing a helmet on the field is almost certainly not going to be considered a reasonable accommodation by the courts.)

I do wonder if there are any states that include on-the-clock political acts as things that can't be discriminated against by employers. Anyone know? (If it turns out California has one I certainly wouldn't be surprised )

 

[XLIX]

The entire protest is about race.

That doesn't mean the fan reaction is about race. I believe if it was white players taking a knee, the fans would be reacting in the same manner.

 

[XLIX]

True. However, courts will refuse to enforce a contract provision contrary to state or federal law.

And where is the federal or state law that says a union and a management group cannot agree that the players have to stand during the anthem?

Please don't say the 1st Amendment because employees waive 1st amendment rights in a wide variety of ways, especially in labor contracts.

So if a clause like that ended up in the CBA I think the NFL would have a very tough time enforcing it against players who challenged it, especially if they said something like "************ was a champion of the oppressed and downtrodden and stood against injustice. My kneeling to protest the unjust treatment of blacks by the police is part of living up to my Christian beliefs."

You cannot honestly be suggesting that a court would accept that a basic tenet of Christianity is that you must kneel during the singing of the nation anthem....

 

[QuantumMechanic]

And where is the federal or state law that says a union and a management group cannot agree that the players have to stand during the anthem?

From the EEOC:

The law requires an employer or other covered entity to reasonably accommodate an employee's religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer's business. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion.

Examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices.

Religious Discrimination

The union and management can put the clause in the CBA, but I very much doubt it'll be enforceable against someone who claims a religious basis for kneeling.

You cannot honestly be suggesting that a court would accept that a basic tenet of Christianity is that you must kneel during the singing of the nation anthem....

I'm saying exactly that because the First Amendment has been held by SCOTUS to greatly restrict courts from making determinations of what is or isn't a tenet of a religion. (Courts are, however, allowed to determine if a given individual does or does not sincerely believe the alleged belief.)

For example, from Presbyterian Church in US v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, which was about a property dispute. SCOTUS decided that courts cannot resolve controversies over what is or isn't a doctrine or practice of a religion:

But First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice. If civil courts undertake to resolve such controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. Because of these hazards, the First Amendment enjoins the employment of organs of government for essentially religious purposes, Abington School District v. Schempp, 374 U. S. 203 (1963); the Amendment therefore commands civil courts to decide church property disputes without resolving underlying controversies over religious doctrine. Hence, States, religious organizations, and individuals must structure relationships involving church property so as not to require the civil courts to resolve ecclesiastical questions.

Presbyterian Church in US v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 US 440 - Supreme Court 1969 - Google Scholar

Further, here's what the EEOC says about federal anti-discrimination law re: religious practices:

A belief is “religious” for Title VII purposes if it is “‘religious’ in the person’s own scheme of things,”[22] i.e., it is “a sincere and meaningful belief that occupies in the life of its possessor a place parallel to that filled by … God.”[23] An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it.

Compliance Manual Section 12 - Religious Discrimination

That same site also gives this example:

A Seventh-day Adventist employee follows a vegetarian diet because she believes it is religiously prescribed by the scriptural passage “but flesh with the life thereof, which is the blood thereof, shall ye not eat,” (Genesis 9:4). Her vegetarianism is a religious practice, even though not all Seventh-day Adventists share this belief or follow this practice, and even though many individuals adhere to a vegetarian diet for purely secular reasons.

 

[Ring 6]

This is the entire point and the reason why the protests worked. No one would care if they weren't made to feel a certain way by the protests. There would be no attention or conversation.

The flag is a symbol of the country in general and these black players feel like the country in general doesn't respect them. Not standing = treating the symbol with the same respect as you feel the symbol treats you with for some.

I also find it interesting that only now that people are kneeling have I seen the conservative types acknowledge the possibility of police brutality being a problem: "Maybe there is police brutality, but they're doing it the wrong way..." when previously, all I ever saw from the same people was "yeah but black on black violence!!!!"

There will always be excuses made as to why a form of protest isn't right. It's just about always nothing more than virtue signaling that you think they should shut up.

It worked?????????????
There is no attention to the cause, in fact most people dont really even know what the message is.
The attention, that should be on the cause they are protesting for, is only on the moment they choose to protest.
They hurt their own cause by having people focus on the disrespect they are showing by choosing that moment to try to make a statement, that doesnt get heard because the conversation is only about standing or kneeling.
Your anecdotal example that conservative people suddenly agree there is police violence because of kneeling for the national anthem is comical.
There is both examples of police brutality and black on black violence in this country. It was there and it was publicized long before Kaepernick decided he needed a way to get people to pay attention to him again. Football players kneeling didn't educate a single person on the existence of social issues. The 1% of Americans who had their head buried in the sand and didn't see what was happening still have their head buried in the sand. Your implication that racists had a sudden epiphany when they saw a football player disrespect the anthem and it made them realize, oh my god police shoot people is ludicrous.
Unfortunately the league is being run by an idiot, and the players have no organization to this mission whatsoever.
What needs to happen is first they need to take the negativity away from their demonstration by not doing it at a time that offends innocent, thoughtful, honest people. Second they need to create and communicate a clear message of just what it is they want. (Black people are oppressed and get shot is not a clear message of what you want). Then they need to choose the proper forum. If they feel silently kneeling gets some kind of message across (which I happen to not think) then when they meet with Goodell they need to tell the idiot to stop spewing crap and do something. Goodell now says they want all the players to stand, but they can do what they want. So are they wrong to kneel? Must be because he wants them to stand right? Then he criticizes politicians for interfering with his league, then submits a political letter to congress on NFL letterhead. Then they need to tell him to establish a moment of silence separate from the National Anthem something like for the furthering of social issues that are near and dear to the players and the league, and in memory of all victims of violence. Then they need to decide what they want. The list could include:
Lobbying regarding laws such as parole reform, mandatory sentencing, etc. Why can't the CBA have a provision for the league to hire lobbyists to represent the concerns of the players?
A call to put body cameras on all police, at least starting in high crime inner city areas
A program where the league, players and NFL donate money, 1% of every check, matched by the league would be what, 100,000,000 a year, for improving education in the hood, or job training programs, crime prevention programs, etc etc.
Call for each NFL city to appoint a victims rights department who will take the side of the victim in investigation of police violence.
There are probably dozens of other things that could have a real impact that could be added to the list, and then this movement would actually have an impact instead of simply causing people to argue about the right to kneel vs the disrespect for the flag.

 

[Ring 6]

From the EEOC:

The law requires an employer or other covered entity to reasonably accommodate an employee's religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer's business. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion.

Examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices.

Religious Discrimination

The union and management can put the clause in the CBA, but I very much doubt it'll be enforceable against someone who claims a religious basis for kneeling.



I'm saying exactly that because the First Amendment has been held by SCOTUS to greatly restrict courts from making determinations of what is or isn't a tenet of a religion. (Courts are, however, allowed to determine if a given individual does or does not sincerely believe the alleged belief.)

For example, from Presbyterian Church in US v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, which was about a property dispute. SCOTUS decided that courts cannot resolve controversies over what is or isn't a doctrine or practice of a religion:

But First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice. If civil courts undertake to resolve such controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. Because of these hazards, the First Amendment enjoins the employment of organs of government for essentially religious purposes, Abington School District v. Schempp, 374 U. S. 203 (1963); the Amendment therefore commands civil courts to decide church property disputes without resolving underlying controversies over religious doctrine. Hence, States, religious organizations, and individuals must structure relationships involving church property so as not to require the civil courts to resolve ecclesiastical questions.

Presbyterian Church in US v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 US 440 - Supreme Court 1969 - Google Scholar

Further, here's what the EEOC says about federal anti-discrimination law re: religious practices:

A belief is “religious” for Title VII purposes if it is “‘religious’ in the person’s own scheme of things,”[22] i.e., it is “a sincere and meaningful belief that occupies in the life of its possessor a place parallel to that filled by … God.”[23] An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it.

Compliance Manual Section 12 - Religious Discrimination

That same site also gives this example:

A Seventh-day Adventist employee follows a vegetarian diet because she believes it is religiously prescribed by the scriptural passage “but flesh with the life thereof, which is the blood thereof, shall ye not eat,” (Genesis 9:4). Her vegetarianism is a religious practice, even though not all Seventh-day Adventists share this belief or follow this practice, and even though many individuals adhere to a vegetarian diet for purely secular reasons.

Standing for the national anthem has nothing to do with religion.

 

[DarrylS]

Thats the whole point of a CBA and that is why I have consistently stated that I believe this issue will be forbidden in the next CBA.

CBA Article XYZ Section 1: All players will stand respectfully for the national anthem. Failure to do so will result in fines starting at $100,000 per incident and game suspensions after the 3rd incident.

Doubt if you can take away a first amendment right that has been already upheld by the SCOTUS, need to keep in mind that people represented by collective bargaining units do not just give things up unless there is a concession on the other side, in many of these players minds they view their actions a right and just. You cannot legislate what they view as a morality/justice issue..

I think there is a basic misunderstanding regarding the actual issues and players passion about them.. none of this is simple and the actual issues are much different than how they have been framed.. there is also the other part of this issue as most owners do not seem to have the passion to want to change what is going on..

 

[Ring 6]

Doubt if you can take away a first amendment right that has been already upheld by the SCOTUS, need to keep in mind that people represented by collective bargaining units do not just give things up unless there is a concession on the other side, in many of these players minds they view their actions a right and just. You cannot legislate what they view as a morality/justice issue..

I think there is a basic misunderstanding regarding the actual issues and players passion about them.. none of this is simple and the actual issues are much different than how they have been framed.. there is also the other part of this issue as most owners do not seem to have the passion to want to change what is going on..

The first amendment does not apply to this.

 

[Lavictoire]

The Giants owner was explicit when he said that he wasn't going to give Kaepernick a shot because of the controversy. It wasn't based on his play. The Ravens owner also brought up the protest.

This doesn't mean collusion. Only that he is being blackballed by some owner because of the protest, and not because of his ability.

I'm going to go out on a limb and say Kaepernick is better than Beathard and Hoyer.

The individual owners have a right not to not hire him if they think he is a troublemaker. Collusion means all the owners make a pact not to hire him which I doubt because some owners agree with his protest. They can make their own individual decision to hire him or not.

 

[Lavictoire]

This post stayed with me and the more I thought about it, the more it seems quite feasible. Just earlier today I was showing my girlfriend Irsay’s mugshot and saying “believe it or not, this man owns an NFL team....”

So I am coming around to the idea that such an email is not entirely out of the realm of possibility. Even something like a private email between 2 owners saying “well I’m not gonna sign the sonnuva***** and I hope you don’t either!”

Why is it illegal to blackball a player? The business is football, not political protest. It is private enterprise. I don't understand.

 

[XLIX]

From the EEOC:

The law requires an employer or other covered entity to reasonably accommodate an employee's religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer's business. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion.

Examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices.

Religious Discrimination

The union and management can put the clause in the CBA, but I very much doubt it'll be enforceable against someone who claims a religious basis for kneeling.



I'm saying exactly that because the First Amendment has been held by SCOTUS to greatly restrict courts from making determinations of what is or isn't a tenet of a religion. (Courts are, however, allowed to determine if a given individual does or does not sincerely believe the alleged belief.)

For example, from Presbyterian Church in US v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, which was about a property dispute. SCOTUS decided that courts cannot resolve controversies over what is or isn't a doctrine or practice of a religion:

But First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice. If civil courts undertake to resolve such controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. Because of these hazards, the First Amendment enjoins the employment of organs of government for essentially religious purposes, Abington School District v. Schempp, 374 U. S. 203 (1963); the Amendment therefore commands civil courts to decide church property disputes without resolving underlying controversies over religious doctrine. Hence, States, religious organizations, and individuals must structure relationships involving church property so as not to require the civil courts to resolve ecclesiastical questions.

Presbyterian Church in US v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 US 440 - Supreme Court 1969 - Google Scholar

Further, here's what the EEOC says about federal anti-discrimination law re: religious practices:

A belief is “religious” for Title VII purposes if it is “‘religious’ in the person’s own scheme of things,”[22] i.e., it is “a sincere and meaningful belief that occupies in the life of its possessor a place parallel to that filled by … God.”[23] An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it.

Compliance Manual Section 12 - Religious Discrimination

That same site also gives this example:

A Seventh-day Adventist employee follows a vegetarian diet because she believes it is religiously prescribed by the scriptural passage “but flesh with the life thereof, which is the blood thereof, shall ye not eat,” (Genesis 9:4). Her vegetarianism is a religious practice, even though not all Seventh-day Adventists share this belief or follow this practice, and even though many individuals adhere to a vegetarian diet for purely secular reasons.

Your scenario is an extreme stretch. Regardless, if the scenario painted above does come to pass then I imagine the owners would accuse the union of negotiating in bad faith and force the union to give back whatever concession they got in exchange for their agreement to stand. Now you have a small minority damaging the group using a ridiculous excuse that standing during the national anthem violates their religious beliefs, which would probably not be terribly popular.

Funny how basketball doesn't have these problems.... they must not be terribly religious....

 

[XLIX]

Why is it illegal to blackball a player? The business is football, not political protest. It is private enterprise. I don't understand.

It depends on what you mean by "blackball". Actual collusion is illegal because it violates antitrust laws. A CBA is a nice way to get around such laws, but this particular CBA specifically states that collusion is a violation.

But if 32 owners, acting completely independently, determine Kaepernick is not worth the hassle and inevitable fan protests, then that's perfectly legal.

 

[XLIX]

Doubt if you can take away a first amendment right that has been already upheld by the SCOTUS,

Of course you can. Darryl, what you're missing is the simple notion that freedom of speech does not mean you can say anything you want any time you want with no consequences whatsoever. Workplaces restrict your Constitutional rights in a wide variety of ways, especially your right to free speech.

The government cannot take away your first amendment rights, but an employer sure as heck can.

need to keep in mind that people represented by collective bargaining units do not just give things up unless there is a concession on the other side, in many of these players minds they view their actions a right and just. You cannot legislate what they view as a morality/justice issue..

Yes, I already stated that management would be making some sort of concession to get their way here.... but you certainly can legislate peoples' behavior at work, especially within the framework of a CBA.

And spare me the notion of how important this issue is to the players. Not a single one of them would kneel if it cost them money or their jobs. Even their grand leader Kaepernick himself has been defeated on the issue, promising to stand if someone would sign him.

 

[Ring 6]

Why is it illegal to blackball a player? The business is football, not political protest. It is private enterprise. I don't understand.

It's not.
It's very debatable that collusion could be proven with respect to one player. Collusion is a methodical scheme of management against labor to keep them down. Baseball got hit because they all discussed capping what they would pay. That screws with the open market and ability to negotiate and out employers against each other.
In this case if there are hundreds of emails going back and forth saying "I think he is bad for the league a d we should protect our image" I don't think that really reaches the level of collusion.

 

[FreeTedWilliams]

Why is it illegal to blackball a player? The business is football, not political protest. It is private enterprise. I don't understand.

Its not, look at Ray Rice, Rae Caruth, et all. (BTW, where were the players protesting the brutality of the crimes committed by NFL players against these black females?) I don't remember seeing them take a knee to protest that.

Collusion was only proven against MLB and it was the early days of free agency when Andre Dawson was a free agent. Dawson was a great talent, but he was being wasted on awful Montreal teams. In 1986 MLB started handing out huge contracts, the next year, led by their commish, they decided, that they would not offer any large or long term contracts. The owners basically tried to put the genie back in the bottle. So they colluded not to offer Dawson more money THAN WHAT THE EXPOS WERE ALREADY OFFERING. This is not the case with Kaepernick. He has no offers, collusion only exists if their is a concerted effort to keep a player(s) salary low. If he has no offers, it just means that nobody wants him (probably because he is a too skinny read option QB, who has already alienated more than half the country) .

 

[yukon cornelius]

kaepernick was invited to the NFL, NFLPA, player, owner meeting designed to come up with things they can do to solve the problems they are protesting over and he did not show up.
Yeah, he is all about the cause

well he does now have a lawsuit pending

 

[IcyPatriot]

Lost in all this Kaepernick BS is that he opted out of his contract.
It was his decision to hit free agency - that's going to work against him.

 

[upstater1]

It’s weak to try and make the fan reaction one based on race.

As for booing before the anthem, I think that stems from people having no way of knowing if the player/team will stand up once the anthem begins.

It's totally based on race. It wasn't even during the national anthem!