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Verify: Is kneeling during NFL games a constitutional right?

Can refusal to stand really be punished?
Credit: Ezra Shaw / Getty Images
Colin Kaepernick and Eric Reid of the San Francisco 49ers kneel in protest during the national anthem prior to their game against the Tampa Bay Buccaneers at Levi's Stadium on Oct. 23, 2016 in Santa Clara, California. (Photo: Ezra Shaw/Getty Images)

Where does an NFL player's right to free speech end and his obligation to his employer begin?

The NFL's new policy fines teams whose players openly kneel during the national anthem and even allows teams to fine players.

Similarly, refusing to stand for the Pledge of Allegiance has been tested in court.

The 1943 landmark Supreme Court case, West Virginia State Board of Education vs. Barnette made it clear that public institutions like schools cannot force students to stand for the pledge and they cannot punish students if they refuse. It's about freedom of speech.

But NFL franchises are companies, not government institutions.

Constitutional experts generally agree the league's decision to penalize teams for a player's refusal to stand during the anthem would be an issue pertaining to labor relations agreements and contracts. It is not about constitutional rights.

"The NFL is not bound by the First Amendment," said James Weinstein, Professor of Law at Arizona State University. "The First Amendment only applies to the government—state, federal and local."

Legal observers say one exception might have to do with the fact many stadiums are funded by taxpayers. A player or team could argue the game is not strictly a private enterprise.

The NFL Players' Union has made it clear they are not happy by this decision and say it was made without their input. They are weighing their legal options.

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