Take a Knee Movement, the NFL, and the First Amendment

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Lawyer 2 Lawyer – Law News and Legal Topics

Take a Knee Movement, the NFL, and the First Amendment

10/27/2017

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Marc Randazza: I think we are all old enough to remember even if you thought the Gulf War was wrong. Either one of them, they hated America, our troops and the baby Jesus too for good measure. There is always going to be somebody who is able to seize that branding and at this point the Trump administration and its supporters are winning that branding battle.

Alan Milstein: I don’t think so. I think Kaepernick is winning the battle. And I think that there are more people who respect what he has done and think that he has been wronged, then there are people in the 35% of the Trumpers who think that somehow this is some great offense to America and the armed forces.

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Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

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J. Craig Williams: And welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I write a legal blog called ‘May it please the court’ and I have a book out called ‘The Sled’. My co-host, Bob Ambrogi is in court today. Before we introduce today’s topic, we would like to thank our sponsors, Clio and Litéra.

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Last football season, the NFL’s San Francisco 49ers quarterback, Colin Kaepernick, famously took a knee during the national anthem as a silent protest against police violence against African-Americans. Many others on the other hand were outraged by Kaepernick’s stance and saw it instead as a sign of disrespect for the country, the flag, the military, and the police, where others applauded the movement, including fellow NFL players who supported Kaepernick’s gesture of racial equality by also taking a knee in solidarity during the national anthem.

Through his tweets, President Trump has been very vocal in his disapproval of the #takeakneemovement calling for the firing of players who do the take a knee during the anthem. This reaction from the president has ended up creating even more controversy within the NFL, where some owners and coaches instead came to the defense of their players declaring their allegiance to the players and expressing their disapproval of President Trump’s comments.

So today on Lawyer 2 Lawyer, we’ll discuss the controversy over the #takeakneemovement, the fall-out, the players, the rights, the First Amendment, President Trump, and the NFL’s role in this controversy, as well as the potential impact the controversy could have on the NFL and other sports teams.

To do that, we’ve got a great line-up for you today. Our first guest is Alan Milstein, he’s an is an adjunct faculty member at the University of New Hampshire School of Law and Temple University, and he is a shareholder and chairman of the litigation department at Sherman, Silverstein, Kohl, Rose & Podolsky, P.A. in Moorestown, New Jersey. He is also litigated on behalf of such sports figures such as Allen Iverson, Carmelo Anthony, Maurice Clarett and Eddy Curry. Welcome to the show, Alan Milstein.

Alan Milstein: My pleasure.

J. Craig Williams: And our next guest is a returning guest, Marc Randazza. He is the managing partner of the Randazza Legal Group and is a nationally-known First Amendment and intellectual property attorney. Marc handles litigation and transactional matters nationwide, and welcome back to the show, Marc. Glad to have you back.

Marc Randazza: Thanks, great to be back.

J. Craig Williams: Well, let’s start with Alan and kind of take a look at the #takeakneemovement. My understanding is that it started out as Kaepernick’s sitting on the bench but a veteran instead suggested that out of respect he take a knee which is what ultimately what happened and apparently has inflamed a lot of people.

Alan Milstein: That it did, made him more famous as an advocate of African-American Rights than he was as a quarterback in the NFL.

J. Craig Williams: Marc?

Marc Randazza: My take this, and I come to this as somebody who definitely does not have Trump derangement syndrome, but it really bothers me when the President says that somebody should be fired for exercising their First Amendment Rights.

I think what Kaepernick did was just fine. I mean, in fact, he give something that I think a lot of us could learn from which is he listens to somebody who disagreed with him, meaning that the veteran, Nate Boyer, he listened to him, took what he had to say to heart, compromised his protest from sitting on the bench to taking a knee.

(00:05:08)

And I really don’t care if you agree with the guy’s protest or agree with his point of view on police violence or not, it’s about the most American thing you can do is exercise that right to protest.

So anybody calling him un-American, I mean the hosts have told me I’m not allowed to use my normal colorful language, but you can use your imagination as to what direction you could show, let’s just leave it at that.

J. Craig Williams: Alan, do you see this as an effective silent protest or do you think that the people that are upset at him have the right to be upset?

Alan Milstein: No, I don’t think they have any right to be upset. The Amish and the Jehovah’s witnesses both sex believes that you shouldn’t stand when the national anthem is played. No one seems to care about that. But when this African-American football player making millions of dollars does it in silent protest of a real issue troubling America, suddenly it is so offensive that people can’t even stand it.

So, and to characterize his protest as being against the armed forces is really absurd. In fact, the West Point Football team took a knee as well. So certainly, they weren’t disrespecting American soldiers. So, as Marc says protest has a long tradition in the United States, it’s really what this country is all about and no one should be upset if it happens on a football field.

J. Craig Williams: Marc, you took some breach at President Trump demanding that they be fired, how close does that come to violating the First Amendment? I mean, I know it says Congress can make no law, but can we extend the First Amendment to the President soliciting the owners to fire these people as a breach of their First Amendment Rights?

Marc Randazza: Well, I mean, of course the First Amendment extends to the President. But the president has First Amendment Rights to say stupid things too. So, I don’t have a — I don’t think it’s really a First Amendment problem, unless he uses more than just his bully pulpit.

But it just seems that this is how we handle political opinions that we don’t agree with. And no, it’s not just a right-wing thing. I mean yes, we’ve got screaming right wing voices when American flag bandanas and every other image you can think of screaming about this. But let’s face it. And I count myself among the left. I think we on the left are far worse and have a constantly — at least on the right you have a fixed star as far as you know what you’re going to say that’s going to get somebody screaming about you. On the left, it’s a constantly moving target where everybody is trying to make sure that they scramble to step on top of everybody else to be more virtuous. And I think that the only grown up in this entire situation is Colin Kaepernick, the one guy who listened, adjusted his protest and was respectful.

J. Craig Williams: Although, I think that there’s been many people who have expressed their frustration at America’s seemingly inability to tolerate any type of protest. People are upset that traffic gets blocked and that they are inconvenienced in any little way as a consequence of any kind of a protest. Are we shifting past a point of a reasonable pendulum on this issue? Alan, what do you think?

Alan Milstein: To me, this is a Black-White issue. I mean if Colin Kaepernick were a white player if it was Brett Farve, if it was one of the Manning Brothers, I don’t think you would have the kind of reaction that you have because an African-American was an extremely large afro is the one take the knee. So, I don’t think this is as much about protest as it is about really White America being upset when an African-American voices what he has the right to voice.

J. Craig Williams: Is there any law that requires us to stand for the national anthem? I mean I know we have a flag act but even the flag act doesn’t have a remedy if it gets violated, it’s just kind of guidelines. Is there any kind of legal requirement that we all stand and put our hand over our heart or salute when we sing the national anthem?

Alan Milstein: No, of course, not.

Marc Randazza: Heck, no.

Alan Milstein: Of course not. Now, there is an NFL essentially memo between the commissioner and the teams that says players should stand for the national anthem. But that is not part of the Collective Bargain Agreement; it’s not binding on the players.

(00:09:54)

But again, we’re not talking about law here, we’re talking about essentially the rights of a football player subject to a Collective Bargain Agreement to in essence, take a knee when the ownership and perhaps some of the fan base thinks that’s offensive.

J. Craig Williams: And there are some people especially entertainment lawyers who point to some of the morals clauses and other types of restrictive covenants and entertainment highly paid sports people that are very different than the kind of employment contracts that are between the everyday car manufacture in a manufacturing assembly line employee.

The people that make a lot more money have a lot more restrictions placed on their behavior. For example, if they get arrested, they can lose their sponsorship contracts and so forth. Is there any type of contractual provision in these NFL players such as not disrespecting the team or some kind of vague reference that you think that these owners could point to and hang their head on if they really wanted to sit on that contract?

Alan Milstein: There is some general language about whether it’s in the best interest of the game. But I don’t think anybody has invoked that. What is very interesting and what is certainly timely with respect to this podcast is that, Colin Kaepernick has filed a collusion lawsuit in the arbitration proceedings because since he has started this protest, no team seems to want to employ him as a quarterback though he is certainly — I think by anybody’s estimation, as good if not better than a number of quarterbacks in the league. But he can’t find a job and he has claimed that the league is colluding to keep him out of professional football.

J. Craig Williams: Is the League have any First Amendment obligation here, Marc?

Marc Randazza: No, and I think –

J. Craig Williams: It’s a private entity.

Marc Randazza: Yeah, and it’s – so look, if they want to say, if a guy comes out and say it’s okay to, it’s just fine to beat your wife and no NFL team wants a guy that espouses that position or a player comes out and expresses something in favor of White supremacy and no team wants him for that. That’s just fine too under the First Amendment. I mean, I don’t really have the same amount of respect for his playing ability as Mr. Milstein, but I think he kind of sucks, and that’s why he’s not on a team because if he had any talent at all, there is at least four or five teams that could probably use him. I mean, he’s all right, he’s better than me, but I think he has damaged — he has really severely damage his credibility with his claims that he’s being blackballed. So yeah.

Alan Milstein: No, I couldn’t disagree more. I couldn’t disagree more. I mean, I think, I don’t think there is any doubt that the teams are not employing him because of his take a knee protest. I mean, he certainly is good as a number of second line back-up players and we know there is a number of key injuries going on, the quarterback for the Packers is now out for the season. They could certainly use a back up. He would fit that role nicely.

What’s also very interesting at least from the sports law perspective is that there is a clause on the Collective Bargaining Agreement that says that if essentially 14 teams collude to impact a player, like Colin Kaepernick, then the CBA, the Collective Bargaining Agreement can be declared void making everybody essentially a free agent. So, there is a lot at stake here in this arbitration that Colin Kaepernick has brought.

J. Craig Williams: That’s a great point. But we need to take a break and before we move on to our next segment, we’re gonna hear a message from our sponsors. We’ll be right back.

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(00:15:00)

J. Craig Williams: And welcome back to Lawyer 2 Lawyer. I’m Craig Williams and with us today is attorney Alan Milstein from Sherman, Silverstein, Kohl, Rose & Podolsky, and attorney Marc Randazza, he is the managing partner of the Randazza Legal Group.

Before the break we were talking about the controversy over the take-a-knee and whether or not that collusion claims that Colin Kaepernick has put forth at this point. Marc, is your thought that it’s a significant lawsuit, how much damage can that do to the NFL?

Marc Randazza: I mean, I think Alan knows the Collective Bargaining Agreement better than I do, so I’m going to defer to him on whether it could deem the CBA null and void. But I have a real hard time seeing this going anywhere. I think it’s very unlikely that 14 owners got together or 14 coaches got together and said, let’s none of us hire this guy. These 14 people, or in fact, if every front office in the league just happens to feel the same way about him; and let’s say it’s only about his protest, it’s really not about his playing ability, it’s not about even the fact that look, fans don’t like him.

The NFL’s fan base has really spoken, is using its First Amendment right to tune out NFL ratings are down, people are saying it’s because of this. I just can’t, I can’t see it. I mean the New England Patriots are the closest thing I have to a religion, and I don’t care if every one of them lies down on their back and does snow angels during the national anthem. What I care about is what they do between the whistles. But teams should act in their own best interest. I would like to think that the league would say it doesn’t matter, that everybody in the league would say the guy has got a right to protest. But if they don’t want to do it that way, the same First Amendment that lets him protest, allows them to invoke their right to freedom of association, and say they don’t want to associate with him. They are not doing it in a collusive way. Now, if they’re doing it in a collusive way, sure, that’s another story, but I got a hard time imagining they are that dumb.

Alan Milstein: I mean I think that President Trump’s view that the NFL ratings are down, I think that’s nonsense. I don’t believe that fans are turned off, and that somehow the ratings are down because of Colin Kaepernick. I think that’s a bunch of nonsense. And it’s just what the Trumpers want the rest of us to believe. I think —

Marc Randazza: Oh the numbers are the numbers. I mean I haven’t looked at the hard data and the numbers, but have you looked at the data and the numbers?

Alan Milstein: Yeah. The data does not suggest that the fan base has shrunk in any way. So I just think that — it just doesn’t hold true. As to whether Kaepernick can prove 14 colluded owners, it’s a difficult case because he is going to have to have some evidence. He can’t just infer because he has been hired, that it’s because of collusion. But I think these owners are stupid enough to have written a memo or written some kind of email and I think that Kaepernick’s lawyers certainly have the right to subpoena all of the emails that the owners may have sent to one another and if in fact they have colluded and I wouldn’t be surprised if they have, because they have colluded in the past in a case that I was involved in, then it’s really going to be fascinating what happens.

J. Craig Williams: Let’s take what President Trump has done. Marc, you mentioned that he has taken a bully pulpit in this whole thing. Well, recently, he put that pulpit on a plane in the form of Vice President Pence sent him to a game and have him turn around and walk out in disgust.

Marc Randazza: Yeah.

J. Craig Williams: It’s certainly taking something a little bit more than just a bully pulpit there, what’s your thought on that?

Marc Randazza: It’s the same. No, it’s just taking a bully pulpit in a way that is so transparent and anybody who — a lot of people I’m sure saw through it. I saw through it. I mean don’t tell me for a moment that he didn’t think that that was going to happen and that he didn’t go there knowing full well what he was going to do. But he has got the right to that theatrics. I mean let’s — a lot of his base are people who have the good old fashioned God and country credo and I can sit here with my East Coast education and my West Coast paycheck looking down my nose at them but they make up a pretty large composite if not a majority of the people in this country.

And this kind of optics and theatrics matters when it comes to politics. That was — I thought it was a stupid stunt but millions of people looked at that and said, yeah, that guy feels the way that I feel about the stars and stripes and the troops, and it doesn’t matter that I think protesting is the most — the best way you can honor somebody who might have given their life for the constitution.

(00:19:55)

But what I think doesn’t really matter because I’m one guy. What matters is, there are millions of people in this country who feel that that view that they were very comfortable with, that we’ve been very comfortable with for a long time is passing out of fashion and that makes them uncomfortable and that makes them unhappy and somebody wants to wave that around, they are going to rally behind him. So, I thought it was stupid but effective.

J. Craig Williams: Alan?

Alan Milstein: We have a President who has disrespected the constitution, disrespected every institution of government and for him to say that Colin Kaepernick is disrespecting anything, to me, is just the height of hypocrisy. I mean if this guy would just honor the constitution for one week of this presidency, we would all be better off.

J. Craig Williams: Yeah. From what I have seen and heard many veterans have taken the standpoint that they have fought for Kaepernick’s right to take-a-knee and make that protest under the First Amendment.

Alan Milstein: That’s right.

Craig Williams: It seems to me that the military as a whole is not offended by this.

Marc Randazza: No, they are not.

Alan Milstein: No.

Marc Randazza: But again this is a Black-White issue. I mean that’s the elephant in the room. It is not an issue about protest; it’s a Black-White issue. And if Kaepernick was White, this would not be front page news. It’s the fact that —

J. Craig Williams: And we pointed out that’s a good point. You make the point that President Trump has essentially reframed the issue on us. So what happens now at this point to put it back in the correct viewpoint, that it really is a First Amendment issue and not about disrespecting the country or its flag or its military or anybody else.

Marc Randazza: Yeah, that’s always a rhetorical device that’s been used. I mean, this is — I think we’re all old enough to remember, even if you thought the Gulf War was wrong. Either one of them, you hated, you hated America, our troops and the baby Jesus too for good measure. There’s always going to be somebody who is able to seize that branding, and at this point the Trump administration and its supporters are winning that branding battle.

Alan Milstein: I don’t think so. I really don’t think so. I think Kaepernick is winning the battle. And I think that there are more people who respect what he has done and think that he has been wronged, then there are people in the 35% of the Trumpers who think that somehow this is some great offense to America and the armed forces.

Again, like Marc says, you know, I live in my little liberal bubble so maybe I’m not quite as aware of the level of nationalism and jingoism that is going on.

J. Craig Williams: There are people who are waving the flag that all of this nationalism and isolationism harkens back to Neo-Nazism and point to a lot of references that Trump has made or refused to make to that type of thing. It seems like there’s like an ongoing controversy about everything the president does. I don’t recall this kind of thing as I was growing up as a child through young adulthood into adulthood. I really don’t remember this kind of people picking on everything like this. What’s happening?

Marc Randazza: Well, we got a surprise president. I mean let’s face that. Nobody, nobody thought this guy was going to win. I mean I certainly didn’t think so. I think it shocked a lot of people. And during the campaign, what you had was the rhetoric from the democrats was, if this guy gets elected, it will be the Fourth Reich. They will put vegetarians, and black people in concentration camps. I mean every Jewish friend I had was freaking out that it was like, they were going to get marched off.

And I was very uncomfortable with it, saying, man this is — it isn’t going to be that bad even if he gets elected. I mean I remember George W. Bush being president. We made it through that. But it really didn’t seem to matter because it’s kind of like if you say if lightning strikes this spot right in front of me, I’ll give you everything I own. It’s just the risk of that rhetoric was so low, that it didn’t matter and then the guy won.

And now what you have is 40% of the country who still is ripping their hair out with complete Trump derangement syndrome, screaming that, at this point they either have to admit that the country is not going to like completely sink into the ground and dogs and cats aren’t going to be living together and we’re not going to have complete chaos or they have to admit they were wrong. And getting a liberal to admit that it is wrong is extremely difficult.

So here we are with this disconnect, and at some point there maybe a carpet bombing with Zoloft that will chill everybody out, but I am disappointed that Donald Trump is my President.

But I’m also looking at the Dow doing pretty darn well, I’m looking at the fact that the country seems to be going okay unless you listen to a few people who — well, a lot of people, who are still in hysterics.

(00:25:04)

And I think it’s that hysterics, you need to look at and nitpick every last thing. And one point, that wasn’t me, right? But in the last administration, for god’s sakes, if Barack Obama did any little thing that somebody could examine and look at and say ah, it’s a secret Muslim-Black nationalist wants to overthrow Christianity signal, it’s just the press didn’t take it that seriously.

But most of us who went to journalism school tend to the liberal side, so they listen to it a little more now. I think that’s what your problem is. You got this disconnect and this derangement syndrome that I think is not helpful, but it makes me laugh because I have another passport. If you guys can’t hold it together, I’ll just go to my other country.

J. Craig Williams: Well, Alan I guess it’s almost our point in time to wrap up. Marc, why don’t you give us your contact information so our listeners can reach out to you if they would like to get in contact with you. That was a good summary.

Marc Randazza: Yeah. Well you can usually find me in seat 1A of any random Delta flight leaving Las Vegas, but usually I’m in Las Vegas. You can reach me at 702-420-2001 or at [email protected].

J. Craig Williams: Great! Thanks very much. And Alan, why don’t you sum up with your final thoughts and give us your contact information as well.

Alan Milstein: Sure. My contact information is [email protected] and you can also catch me on Twitter @amilst44.

I guess I still have that Trump derangement syndrome. I haven’t think it’s a lot worse than Marc does. And if you look at the way he has appointed individuals to positions that are going to affect this country for a long time. I think it’s worse than I imagined it would be, not better.

J. Craig Williams: All right. Well, thank you very much. And on that note, it looks like we’ve reached the end of our program. If you would like what you heard today, please rate us an Apple Podcast. This is Craig Williams for Lawyer 2 Lawyer. Thanks for listening. When you want legal, think Lawyer 2 Lawyer.

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