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NFL Says No Kneeling During Anthem. Can That Be Enforced At Kansas City's Arrowhead?

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The NFL now has a rule that requires players to "show respect for the flag and anthem" during pre-game ceremonies. Players aren't required to be on the field for the anthem but if they are, no kneeling or sitting is permitted. They must stand.

The rule, announced last week after a meeting by team owners, sparked an immediate political firestorm. President Trump said he was pleased, but suggested if a player doesn't want to participate, "Maybe you shouldn't be in the country."

Critics, led by a number of NFL players, said the rule was an attack on freedom of speech. The players union said it will challenge any part of the rule that it believes violates its contract with the league.

Politics aside, actually implementing the rule could be hard for a lot of reasons.

"The issue isn't crystal clear. It's murky," says Professor Mitchell Nathanson, a sports law expert at Villanova University.

And it might be murkiest at Arrowhead Stadium, which is owned by the Jackson County Sports Authority.

Can First Amendment rights be curtailed at a government-owned building? That, after all, is the core of the First Amendment — barring the government from infringing on speech.

The answer is: Maybe.

Asked whether there is a First Amendment issue at Arrowhead, Mike White, the lawyer for the Sports Authority, pointed to a federal case in Ohio.

"The case law on the question of whether a tax-supported stadium is a public forum for First Amendment purposes is found in United Church of Christ v. Gateway Economic Development Corp. of Greater Cleveland," White said in an email.

In that 2001 case, the ACLU suedGateway Economic Development Corp., which owns Jacobs Field, home of the Cleveland Indians. United Church of Christ was protesting the team's name, but officials banned protestors from the sidewalks around the ballpark, saying they were privately owned — even though Gateway Economic Development was taxpayer funded. 

The case was settled out of court in 2006 and protestors were allowed at designated locations.

Does that case predict what might happen at Arrowhead?

Nathanson says no.

"Gateway wasn't prohibiting political speech, per se. That's not at all like what's being prohibited here, which is speech that is political in nature."

The NFL could argue that since the Chiefs lease Arrowhead from the Sports Authority, the stadium is a private business and private actors can restrict the free speech rights of employees during a game.

"Employees may also surrender some of their First Amendment rights in an employment contract, as is the case, for example, with dress codes," says Sports Authority lawyer White.

But given the statements from the players union, it's not likely the union will easily surrender its First Amendment rights.

Free speech is a balancing act, says Nathanson.

Does the political action of an employee disrupt the workplace?

"So the issue is, how much does kneeling disrupt the work environment?" he asks. "Probably very little, since it's a silent act and doesn't even take place during the game."

Not murky enough? Beyond the First Amendment, some states go even further to protect free speech. Missouri is among them.

Missouri law makes it a misdemeanor for employers to prevent their workers from engaging in politics. Employers may not enforce "any order, rule, or regulation or adopting any other device or method to prevent an employee from engaging in political activities," the statute reads.

So whether it's the First Amendment, the union contract or Missouri law, the Chiefs might end up in court. Nathanson suggests there will be "a long and ugly fight, and bad feelings on both sides" between the NFL and the players.

A lawyer for the Chiefs did not return a call, but Head Coach Andy Reid reluctantly addressed the no-kneeling rule at a news conferance last week.

"We understand the rule," Reid said after a team practice. "There will be a time when we address  it and talk about it, but that will be within the team and nobody else needs to know."

Given the heat surrounding this new rule, nobody else knowing seems unlikely.

Sam Zeffis KCUR's Metro Reporter. You can follow Sam on Twitter @samzeff

You deserve to know what your taxpayer dollars are paying for and what public officials are doing on your behalf – I’ll work to report on irresponsible government spending in the Kansas City area and shed light on controversies that slow government down. And when you hear my voice in the morning, you know you’re getting everything you need to start your day. Email me at sam@kcur.org, find me on Twitter @samzeff or call me at 816-235-5004.
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