In the Pursuit of Basketball: Comprehensive Legal Guide and Questions to all Things NBA: Standing for the National Anthem: An NFL Option, but an NBA Requirement?

On August 26, 2016 49ers back-up QB Colin Kaepernick knelt for the National Anthem, and has continued to do so since. Many other NFL players have begun kneeling as well. The goal is to bring awareness to police brutality that routinely occurs at a high rate against minorities. He has achieved this goal. He has brought the issue of police and community relations to the forefront by creating a national discussion. His controversial method did exactly what it was designed to do. It got people to discuss and think about an important social issue. Kaepernick said:

“The media painted this as I’m anti-American, anti-men-and-women of the military and that’s not the case at all. I realize that men and women of the military go out and sacrifice their lives and put themselves in harm’s way for my freedom of speech and my freedoms in this country and my freedom to take a seat or take a knee so I have the utmost respect for them.”

Kaerpnick has also put his money where his mouth is in deciding to donate $1 million to groups in need.[1]

NBA players may join Kaepernick and kneel with him this season. While some NBA players have stated they will stand during the National Anthem, Oklahoma City Thunder Guard, Victor Oladipo, believes players will join Kaepernick in a sign of solidarity.[2] However, the NBA has a rule of conduct that requires players, coaches and trainers are to stand and line up in a dignified posture along the sidelines or on the foul line during the playing of the National Anthem.[3] This creates an immediate issue between the League and its players.

This article will explain why the NBA can legally enforce this rule requiring its players to stand for the National Anthem. It will then examine the possible scenarios that could play out.

As a general rule, the constitution only applies to a government actor. Originally it only applied against the federal government, but many of the bill of rights are now incorporated to the states via the 14^th Amendment. The 1^st Amendment is one such right incorporate to the states. Hence, no government actor (State or Federal) may violate a person’s right to free speech under the 1^st Amendment. If a state actor acts with regard to speech, say by making a law or regulation, then strict scrutiny will be used to review the law’s Constitutionality because the right to free speech is a fundamental right. This means the law must be narrowly tailored to achieve a compelling government interest. It is difficult (although not impossible) for a law to pass strict scrutiny. However, the Constitution and these rights only apply as against the government, not to private actors. There are instances where the Constitution does apply to private actors. For example, Congress can pass laws to prevent slavery and racial discrimination.

In applying the general rule, the NBA is a private actor, not a state actor. It is a private business, and the players are its private employees. Thus, no player can bring a 1^st Amendment claim against it because the Constitution does not apply to it. Also, since the issue does not deal with racial discrimination or slavery, the limited exceptions do not apply either. The NBA is not bound by the Constitution on this issue. It can legally implement and enforce rules restricting speech and expression without having to worry about Constitutional implications. The players signed a contract with the league and are bound by all of the rules and regulations regarding player conduct.

With that said, as a practical matter, here are some scenarios that could take place:

1) An NBA player protests by kneeling.

There is a good chance the NBA players could protest and kneel for the National Anthem, at which point the League would be justified in giving each player that does so disciplinary action. There is precedent for this. Mahmoud Abdul-Rauf refused to stand for the National Anthem in 1996 stating that standing for a flag that represents oppression and racism conflicted with his Islamic beliefs.[4] On March 12, 1996, the NBA suspended Abdul-Rauf one game for his refusal to stand. It seems like the likely disciplinary action would be a 1 game suspension for each incident. However, the NBA Commissioner has broad discretion in disciplining players, as proscribed in the NBA Constitution.[5] If an NBA player does not stand, then they are violating the rule and the League would be well within their right to discipline the player. As a practical matter, the League may give warnings or not enforce the rule. The NBA is a progressive League and is always at the forefront of social and political issues. It seems like the NBA would do its best to avoid any punishment strictly from a public relations perspective. An example of this is when the NBA players wore t-shirts reading, “I can’t breathe” to voice their opinions on the death of Eric Garner.[6] The NBA issued no fines even though the players broke the rules by not being in uniform.

2) An NBA player protests by some action other than kneeling.

A player may put a fist up in the air instead of kneeling, or perhaps lock arms with other teammates to show unity. The question then becomes, is that player standing in a “dignified” manner? This is up to interpretation. On the one hand it is still a protest, but on the other it is not a significant deviation from the normalized standard of plainly standing. Once again, Commissioner Adam Silver would have discretion to discipline this behavior, however I firmly believe he would not punish a player given his more liberal and nuanced understanding of social and political issues. The NBA may hand out disciplinary action if a protest causes disruption of usual basketball operations or if the protests become long-standing and players openly defy the rule. However, I do not see the players taking it that far.

3) An NBA player does not protest, and the NBA does nothing.

This is a scenario where nothing happens, so there is not much for me to say. There have been some players who have publicly stated that they plan to stand for the national anthem (LeBron James and Draymond Green). There is a good chance that no player protests the Anthem and perhaps chooses a less controversial method to raise awareness, that is a method that breaks no League rules. Some players are too keyed in before a game to do an actual protest (Aaron Gordon brought this up in a recent interview with the media). The League has no plans on removing the requirement to stand for the National Anthem[7], and the players may find other avenues to make a difference. In many ways the conversation was already started by Kaepernick doing what he did.

With all of this said, the NBA is a progressive League. From the top down it has embraced a progressive ideology, from ousting Donald Sterling from owning a team after making racist remarks and epithets, to moving the NBA All-Star Game away from North Carolina after the passing of an anti-LGBTQ law. The League handles these situations quite well, and a lot of this has to be credited to Adam Silver. The League, in my opinion, will do its absolute best to end up on the right side of this conversation.