Barber: NFLPA had no choice but to challenge anthem policy

You know the NFL Players Association wanted nothing to do with this. Neither the NFL or its players’ union wants to spend one more minute talking about the national anthem, and what sort of body posture we should all be adopting when it’s played. The debate is bad for labor relations, bad for image and, most crucially, in this high-profile wing of the entertainment industry, bad for business.

But the NFLPA couldn’t sit this one out. Tuesday morning, the organization distributed an unsigned statement noting that the union has filed a grievance on behalf of its athletes, challenging the anthem policy that NFL owners ratified at their annual meeting in May.

My reaction? What took ’em so long?

To be honest, I’m a little weary of this debate myself. I’m not past the social problems that encouraged Colin Kaepernick and other football players to take a knee in the first place. I’m still interested in discussions of what patriotism truly means, and what constitutes appropriate behavior in the workplace. Those are meaty topics. But I’m sick of the pregame head count.

The NFL anthem debate - I know players aren’t actually protesting the “Star-Spangled Banner”; sorry, I use the?shorthand sometimes - has turned us all into avid birders, peering through binoculars and exclaiming, “Ooh, there’s one!” before every game. We’re largely ignoring the issues at this point. We’re just keeping score.

But the NFL’s new policy isn’t an extension of the debate. It’s a new inroad into players’ rights, and the NFLPA isn’t merely justified in saying so. It’s obligated as a union.

Twitter was in a furor over the NFLPA’s grievance Tuesday. All the old favorites came down the Hit Parade: When NFL players are on the job, team owners can tell them to do anything they want. Overpaid, babied football players should be fired for disrespecting the flag, our armed forces and Francis Scott Key. NFL ratings will continue to plummet because these guys JUST DON’T GET THE MESSAGE.

I could write a whole column about how all of these points are wrong. Fortunately, no lecture is necessary, because all of these pro-ownership, anti-player arguments are simply irrelevant in this case. They’re part of the backstory, not the story, and you’re missing the point entirely if you think otherwise.

Here’s the key portion of this morning’s public statement: “The union’s claim is that this new policy, imposed by the NFL’s governing body without consultation with the?NFLPA, is inconsistent with the collective bargaining agreement and infringes on player rights.”

I know, it’s a sentence that only a lawyer could love. But you would do yourself a service by taking a closer look at those 31 words.

The NFL and its players, you may have heard, are governed by a collective bargaining agreement. Representatives of both sides signed the latest version in 2011; it will expire after the 2020 season. The CBA governs all sorts of wonky matters and includes wildly entertaining sections like “Veteran Per Diem” and “Electronic Medical Record System.”

Basically, there is almost no formal interaction between NFL owners and players that is not governed by the CBA. Collective bargaining has been recognized in this country at least since 1935, when President Franklin Roosevelt signed the National Labor Relations Act.

And guess what? When NFL owners stated that players would have the option to remain in their locker rooms during the national anthem, but would be required to stand if they were on the field, they did so unilaterally. There was no negotiation with the union, no amendment to the CBA.

The NFLPA could not tolerate such a move. No way. It would have been a sellout of its players, many of whom have deep concerns about the way law enforcement treats black people in this country, and wish to express their feelings in a highly visible manner.

There is one way for the NFL to institute this policy without the union’s consent. It must rely on the broad powers given the commissioner through the league’s personal conduct policy. You’ve heard the phrase “conduct detrimental to the league”? That’s what we’re talking about here.

It’s a phrase most often associated with domestic violence, repeated drug offenses, drunken sprees, lethal driving and other criminal violations. (See the accusations made against running back LeSean McCoy on Tuesday.) To lump the anthem protests into this category is vile. You may vehemently disagree with players on police protocols, and whether an NFL game is an appropriate setting for protesting them. But if you’re prepared to equate spousal abuse with quietly taking a knee during the anthem, your politics have made you irrational.

Many anti-player commenters pointed to a specific phrase in the NFL’s personal conduct policy, the one that says the commissioner has the right to punish anyone who “damages the reputation of others in the game, and undercuts public respect and support for the NFL.”

“See?!” they cried. “What could undercut public respect more than failing to stand for the anthem?”

Well, OK, but how far should the policy go to protect the feelings of fans in this age of outrage?

Every time the Texans play the Titans, you think there aren’t full-fledged racists watching that game on TV and complaining about the dreadlocks bouncing from underneath helmets and the lavish end-zone celebrations and, gulp, the fact that Houston has a black quarterback? You think some fans aren’t disgusted by the NFL’s attempt to eliminate the manly art of injuring an opponent’s brain?

The point is that some fans do see taking a knee as disrespectful. But it’s merely an opinion, and not an easy one to support when you dig deeper into the issues. The NFL shouldn’t be trying to apply the personal conduct policy to peaceful protest. And it most definitely shouldn’t be ignoring the collectively bargained rules in an attempt to tamp down controversy.

The final paragraph of the union’s release said this: “In advance of our filing today, we proposed to the NFL to begin confidential discussions with the NFLPA Executive Committee to find a solution to this issue instead of immediately proceeding with litigation. The NFL has agreed to proceed with those discussions and we look forward to starting them soon.”

Smart move by the NFL. You can’t please everyone on this issue, but some opinions carry more weight than others - like those of the arbitrators and judges who would certainly strike down your misguided, unilateral decision.

Columnist Phil Barber is at 707-521-5263 or phil.barber@pressdemocrat.com.