Trump v. the NFL
New York State Bar Association Journal
November/December 2017
Partner Mark Konkel and associate Diana Hamar authored the New York State Bar Association Journal article “Trump v. the NFL,” discussing whether or not NFL players who have chosen to kneel during the playing of the national anthem can sue President Trump for violating their civil rights after Trump tweeted that the players should be let go from their teams. Although free speech rights are at the center of the controversy, other factors such as government speech rights, employer rights and labor contract language can also determine whether NFL players can sue the President.

Under the Government Speech Doctrine, the government is allowed to have an opinion and to express that opinion, which means that even though President Trump is urging employers to fire players and for citizens to boycott private businesses, President Trump is allowed to promote his particular viewpoint. Even though players can try to go after team owners, they are faced with employers having the right to order players to stand for the anthem or be fired.

“In the end it will likely be the marketplace that resolves the controversy,” wrote Mark and Diana. “If the protests impact ticket and television revenues that will speak louder than any side-line show of player solidarity.

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