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What the NFL’s new anthem policy could mean for Colin Kaepernick and Eric Reid

Legal experts say owners’ vote could bolster claims of collusion

ATLANTA — The NFL’s new anthem policy could bolster the cases of Colin Kaepernick and Eric Reid, who have filed collusion grievances against the league.

The friends and unemployed former teammates on the San Francisco 49ers allege that team owners conspired to keep them out of the NFL because of their political activism. Back in 2016, Kaepernick ignited a movement by first sitting and then kneeling during the national anthem to shine a light on racial injustice. Reid was the first player to kneel alongside Kaepernick during “The Star-Spangled Banner.”

In response to the protests that Kaepernick started, NFL owners meeting here on Wednesday unanimously approved, with one abstention by the 49ers, a policy that requires players to stand if they are on the field during the performance of the anthem. They have the option to remain in the locker room while the anthem is playing. Clubs will be subject to a fine if a player or any other member of an organization fails to show respect for the anthem, including sitting or kneeling. The league has empowered clubs to discipline players and other employees for violating the policy.

The timing of the league’s move is curious, said labor law expert Thomas A. Lenz, a lecturer at the University of Southern California Gould School of Law. “At a time when you have grievance processes underway … the timing of implementation of a new policy is actually an issue.

“It can also be troublesome when it’s on the heels of protected activity or a dispute about protected activity,” he said. “And although the players are allowed a choice of whether to participate in the anthem or not, they have to conceal anything but their actual expression for support for the anthem.”

The NFL’s decision to approve a new anthem policy in response to the protest movement is relevant to Kaepernick’s and Reid’s grievances, said Stanford Law School professor William B. Gould IV, an expert in labor and discrimination law.

“It establishes clearly their [the NFL owners’] unequivocal hostility to these kinds of expressions,” said Gould, who served as chairman of the National Labor Relations Board from 1994 to ’98. “I do think it can help their cases. I think it’s going to be a prominent exhibit in both of these grievances to show that the owners are acting as a group against them.

“Remember, they’re attempting to show that owners are acting as a group, that more than one have banded together to exclude them. And the fact that more than one, indeed all of them, have rallied around this particular flag shows that they’re operating as a group.”

President Donald Trump’s comments about the anthem and NFL players could come into play in grievance hearings as well, Gould said. At a political rally in 2017, Trump blasted NFL players for kneeling to raise awareness of racial inequalities. In subsequent tweets, he maintained a pressure campaign against the league, pushing owners to make changes to the anthem policy. On Wednesday, they did.

“Just as a constitutional matter,” Gould said, “the fact that they have been urged by President Trump to so act, it renders [the league] liable to a constitutional litigation.”

Jason Reid is the senior NFL writer at Andscape. He enjoys watching sports, especially any games involving his son and daughter.