Collective Bargaining, Employee Rights, and the NFL

Owen Laird, Esq.

On Thursday, all across the country, Americans will gather together to celebrate Thanksgiving. For millions, their Thanksgiving celebration will include sitting down and watching some football. The National Football League (NFL) is one of the most prominent societal institutions left in the United States today, and its popularity—though not universal—is so widespread that millions of Americans often view vital issues such as race, politics, religion, and economics through the lens of the NFL.

For the past year, it has been impossible to escape the countless stories about NFL players protesting police brutality by kneeling during the national anthem. Those stories, often critical of the protests, were followed by stories about the backlash by owners and fans against the protests, which, in turn, were followed by stories about the backlash against the backlash, ad infinitum.

The ubiquity of the national anthem issue shows that millions of Americans are engaged politically with the NFL. Many of these individuals only confront the issue of police brutality through the NFL protests. Putting aside the specific issue of anthem protests, NFL players work in one of the most publicly scrutinized workplaces in the country, and nearly every season involves a dispute between players and the league about workplace discipline. For example, the “deflategate” saga consumed both the 2015 and 2016 NFL seasons, as the NFL attempted to suspend Tom Brady, the star quarterback of the New England Patriots. While most fans engaged in the scandal on a more superficial level—either as fans of the Patriots or, more commonly, as fans of their opponents—it did provide as an interesting and instructive lesson on the extent to which workers can be disciplined by employers in the context of a collective bargaining agreement (CBA), the contractual agreement between an employer and employees that defines their rights in the workplace.

That issue—the extent to which employers can discipline workers—re-entered the spotlight this season. Ezekiel Elliott, a running back for the Dallas Cowboys, was accused of domestic violence in 2016, but police did not ultimately charge him with a crime. The NFL conducted its own investigation of the claims and suspended Elliott for six games this season. Elliott then appealed the suspension to an arbitrator, who upheld the NFL’s decision. The NFL Players Association—the union for NFL players—then appealed the arbitrator’s decision to federal court. Since then, judges in Texas and New York district and circuit courts enjoined Elliott’s suspension, then reinstated it, enjoined it again, reinstated it again, and stayed it. Most recently, the U.S. District Court for the Southern District of New York reinstated the NFL’s suspension.

While most of the public’s interest in the Elliott matter boils down to when and where he will be able to play football, his case, much like the Brady case, is an interesting study in labor and employment law. At heart, the issue is to what extent the NFL can discipline its employees under the CBA. Most, if not all, NFL players are bound by a “player misconduct” policy, similar to a “morals clause,” which gives the NFL and NFL teams leeway to punish players for conduct detrimental to the team.

Given that the American workforce is increasingly non-unionized, many employees do not have experience with workplaces governed by CBAs. As a result, many assume that the NFL is like any other at-will employer and can suspend whoever it wants, for any reason and for any length of time. This, however, is not the case: As we learned in the Tom Brady matter, and as we are learning in the Elliott case, the CBA and individual contracts determine the extent of the NFL’s power, and if the players believe that the NFL has exceeded that power, they can bring suit in federal court. Here, the NFL has, through the CBA, relatively broad authority to discipline its players. In light of the most recent decision, Elliott is now serving his suspension.

If your employer has taken improper action against you, contact The Harman Firm, LLP.