As the public debates the actions of some football players and how the owners of the football teams react, human resource professionals have a special perspective. They are the company’s risk managers. When deciding whether to discipline or discharge an employee, risk managers conduct a due diligence analysis. 

  • Are the football teams privately or publicly owned? They are privately owned and are not public entities such as school districts or agencies of the federal, state or local governments. 
  • Do the football players have any constitutional rights? Government employees have the right of free speech in certain circumstances. The football players, as employees of privately-owned companies, do not have free speech rights while working. 
  • Do the football players have contract rights? As employees of privately-owned companies, the football players are protected by two different contracts. First, football players sign individual contracts with the football teams. These contracts may have provisions giving the owners the right to discipline and terminate the players. Second, the football players are represented by a union, which has a collective bargaining agreement with the owners. This agreement also includes provisions regarding discipline and termination.
  • Do the football players have statutory rights? When examining statutory rights, management needs to analyze federal and state laws that protect employees of privately-owned companies. Under federal law, the football players are protected by Title VII of the Civil Rights Act and the National Labor Relations Act. The legal question is whether the owner is terminating a player because of his race. Is the football player protesting the flag or the treatment of African-Americans by the police? Under the National Labor Relations Act, employees have the right to engage in concerted, protected activity. Although the protest is concerted, because the players are acting as a group, is the protest protected as complaints about their wages, hours and working conditions? Probably not. Under some state laws, football players – like all employees in that state – have the right to engage in lawful activities. For example, a company may not terminate an employee for smoking, which is a lawful activity. In other states, statutes protect employees to engage in political activities. The question then becomes whether the football players’ protest is a political statement. 
  • Do the football players have common law rights? In many states, companies may not retaliate against a privately-employed employee when the state has a public policy to protect employees. For example, in many states, the courts protect against retaliation when employees exercise their rights under the states’ workers’ compensation laws. Many state courts have created the right of privately-employed employees to act as whistleblowers, if the company is violating a law or regulation. Regarding the football players, the question is whether discipline of the football players would violate a public policy.

These are difficult, legal questions, some with no easy answers. However, every company should complete this checklist when considering disciplinary action, including termination. By completing a due diligence analysis, management will determine the risks involved, make knowing decisions based upon those risks and mitigate those risks when acting.