86 Fordham L. Rev. Online 1 (2018)

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                     STANDING TO KNEEL:
     ANALYZING NFL PLAYERS' FREEDOM TO
          PROTEST DURING THE PLAYING OF
               THE U.S. NATIONAL ANTHEM


                              Marc  Edelman*


   On  September  22, 2017, U.S.  President Donald  Trump   held a campaign
rally in Huntsville, Alabama, where  he suggested  that the National Football
League  (NFL)   should  fire all players who politically protest during the
playing  of the U.S. national  anthem  (the national anthem).1   President
Trump   then followed  his statements  with  a series of tweets in which  he
declared that, if the NFL continued to allow its players to protest during the
national  anthem,  the  U.S.  government   should  take  away   the league's
massive  tax breaks.2


* Professor Marc Edelman (Marc@MarcEdelman.com) is a tenured Professor of Law at the
Zicklin School of Business, Baruch College, City University of New York. He is also an
adjunct professor at Fordham University School of Law and a columnist for Forbes
SportsMoney. Professor Edelman advises numerous businesses on legal issues related to
antitrust, gaming, intellectual property, and sports law.

    1. Julie Hirschfeld Davis & Jonathan Martin, At Alabama Rally, Trump Toggles
Between Republican Loyalists, N.Y. TIMES (Sept. 22, 2017), https://www.nytimes.com/
2017/09/22/us/politics/trump-luther-strange-alabama.html  [https://perma.cc/9Y43-Q8M3];
see also Mark Maske, NFL Owners Could Change Anthem Policy Next Season If Protests
Continue, WASH.   POST   (Nov. 21,  2017),  https://www.washingtonpost.com/news/
sports/wp/2017/11/21/nfl-owners-weighing-change-to-anthem-policy-for-next-season-if-
protests-continue [https://perma.cc/AJ56-HSRY] (noting that President Trump specifically
stated during his speech that NFL owners should fire any player who protested during the
anthem, and referred to a protesting player as a being a son of a bitch). See generally
Jenna Johnson, 'I Love Alabama-It's Special': At Rally for Sen. Luther Strange, Trump
Vents  Frustrations in  Rambling   Speech,  WASH.   POST   (Sept. 23,  2017),
https://www.washingtonpost.com/news/post-politics/wp/2017/09/23/i-love-alabama-its-
special-at-rally-for-sen-luther-strange-trump-vents-frustrations-in-rambling-speech
[http://perma.cc/C23E-D3ZM] (noting the city of President Trump's speech as Huntsville,
Alabama).
    2. Ylan Mui, Trump Threatens to End NFL's 'Massive Tax Breaks' but His Tax Plan
Would Be Great for Sports Teams, CNBC (Oct. 10, 2017, 2:56 PM), https://www.cnbc.com/
2017/10/10/trump-threatens-to-end-nfls-massive-tax-cuts-but-theres-a-huge-one-in-his-tax-
plan.html [https://perma.cc/92M9-BE9M]; see also Maske, supra note 1. Subsequent to
these tweets, the White House clarified that when President Trump referenced massive tax
breaks, he was actually referring to public subsidies for sports stadiums. Tracy Jan, Did
Trump's Tweet Make It Safer for NFL Players to Kneel for the Anthem?, WASH. POST (Oct.
15, 2017), https://www.washingtonpost.com/business/economy/did-trumps-tweet-make-it-
safer-for-nfl-players-to-kneel-for-the-anthem/2017/10/15/d99f20ca-af44-1 1e7-a908-
a3470754bbb9_story.html [https://perma.cc/PWM4-2FJN]; cf Marc Edelman, Sports and
the City: How to Curb Professional Sports Teams' Demands for Free Public Stadiums, 6


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