“Taking a Knee” and Social Activism in the NFL
The New York Jets Attorney Night: Event Recap
By: Alexandra Lenczewski
(1L Delegate, Sports)
(Photo features BESLS Members in the Jets Press Box, from left to right: Alexandra Lenczewski, 1L Delegate for Sports; Ashley Misir, Media Co-Chair; Montene Speight, 1L Delegate for Sports)
Earlier this month, members of the Brooklyn Entertainment and Sports Law Society attended Attorney Night at MetLife Stadium, hosted by the New York Jets and the Essex County Bar Association. Prior to kick off, the Bar Association moderated a thought-provoking panel discussion in the Jets Press Box, covering the sensitive issues that arise when players take a prominent stance in social activism, and how The National Football League (“NFL”) plans to address the particular issue of players protesting during the national anthem. The panel consisted of Hymie Elhai (SVP, Business Affairs and General Counsel with the New York Jets, and Sports Business Journal's "40 Under 40" Class of 2016), Elnardo Webster (NFL Player Alumni), and Matthew Hiltzik (CEO, Hiltzik Strategies), and it took a specific focus on the political stance that made major waves in mainstream media in an unexpected way: taking action by “taking a knee.”
When Colin Kaepernick, former quarterback of the San Francisco 49ers, took a knee during the national anthem to protest police brutality toward African Americans, he sparked a conversation that tore through the NFL like a wildfire. Kaepernick’s unspoken gesture initiated a ripple effect throughout the league, inspiring competing teams and their players, many of whom had been thirsting for the opportunity to voice their concerns, to unite in their beliefs against police violence, racial inequality, and the wrongful deaths of African American citizens. More and more players began to take a knee during the national anthem, in Kaepernick’s likeness, with the hope of inspiring a national discussion on criminal justice reform.
As one can imagine, however, the players’ particular method of protesting has been met with criticism by a large portion of the general public, many of whom argue that the “Take a Knee” protest is disrespectful to police and military personnel, as well as to the American experience that the national anthem proudly represents. Additionally, Kaepernick’s movement was not well-received by many prominent figures in the NFL, including several coaches and corporate executives, and it had invited a great deal of unwelcome political scrutiny onto the league. As we know, following this movement, Kaepernick was suspended by the NFL, and later opted-out of his contract with the 49ers. He remains unsigned today.
The distinguished panel at Attorney Night tackled some of the major issues head-on, including a brief history of the protests of this same nature in other professional sports, as well as the apparent lack of consistency from the NFL in disciplining the players who chose to protest. First, by way of background, the panel explained that what lies at the core of the “Take a Knee” initiative is not unique to the NFL, nor does it stem from an isolated cause that can be fixed overnight. Instead, it is a multi-level issue that was prevalent in both the MLB, with players also kneeling in public protest over racial inequality, and in the NBA, with players like Chris Paul and Lebron James speaking out on this same issue.
Interestingly, the panel compared the decisions of NFL players to kneel during the national anthem to the unwritten rule of facial hair on Yankees players in the MLB: there are times when the league does not view themselves as responsible for strictly regulating every particular behavior of every individual player, because with any trend or unwritten rule, the player ultimately has the freedom to challenge it.
What makes the NFL unique from the MLB or NBA in using their discretion when regulating protests, however, is that NFL players’ contracts are generally more openly performance-based. The reason the consequences tend to be direr in the NFL, as compared to other sports, is because of this contractual piece. At the time of the protest, the panel explained, Kaepernick was a backup quarterback, and what the panel referred to as a “fringe player.” The NFL’s approach to deterrence seems to be largely dependant upon the caliber of the player, which might explain why Kaepernick remains a free-agent while others who have joined him in the protest have kept their careers unscathed. When trying to determine the internal reach of this protest and how serious the NFL actually is about discouraging a player’s controversial behavior, a panel member concludes, “the real test would be making a star player like [Tom] Brady either kneel or stand.”
However, it appeared from the panel discussion that the intention of the NFL at this time is to move away from this arguably polarizing method of protest, and toward working together with the players to find more effective ways of bringing about direct changes to their communities and improving the issues that concern them. The panel stated that it is very likely that the NFL will prioritize finding a solution to this issue immediately after the end of the current 2017 NFL season. They further predicted that a solution could likely be met within the next year or two, between the players and the owners, but at this time, the cost of that is unknown. Such proposed solutions include improving police education and having players enter communities to speak directly with law enforcement officers about improving the treatment of African American citizens.
In conclusion, the panel remarked on the Twitter spat between the league and our nation’s president. Last September, President Trump publicly responded to the “Take a Knee” protest through a series of Tweets urging the NFL to fire all players who protested the national anthem and encouraging fans to boycott the games until the owners put an end to the protests. The panel at Attorney Night responded to this talking point by stating that, “Although many people within the NFL community did not agree with President Trump’s suggestions, a lot of the players who had participated in the protest actually viewed this acknowledgment from the President as a victory... The guys who silently protested by taking a knee had finally broken into the national dialogue.”