Kaepernick and the NFL – Employee Relations 101

I’ve been watching the latest press and protests in support or against Colin Kaepernick and the NFL. As an African-American, I can certainly understand Kaepernick’s stance.

However, as an Employee Relations (ER) professional whose job is to lessen the employer’s liability by upholding the employee’s rights, while also making sure employee’s are held accountable, I wanted to know more.

As an ER professional, I must be intimately familiar with the employer’s culture, rules, regulations, laws, and any applicable labor contracts. While I do not profess any such intimate relationship with the NFL, thanks to Google, I was able to locate a document that will assist me in forming an opinion that isn’t based on my personal values but on the rules.

I don’t have a copy of Mr. Kaepernick’s NFL contract nor do I need to for this exercise. As I am almost certain the conduct clause is the same for each person attached to the NFL.

In an initial search I located the 2013 NFL’s Personal Conduct Policy which was three pages long. https://nfllabor.files.wordpress.com/2013/06/personal-conduct-policy.pdf The document states “all persons associated with the NFL are required to avoid conduct detrimental to the integrity and public confidence in the National Football League.” In describing the Standards of Conduct, the NFL tells employees that they are “held to a higher standard” and “it is not enough to avoid being found guilty of a crime.” Instead, the NFL expects it’s employees to conduct themselves in a way that “responsible, promotes the values upon which the league is based, and is lawful.” If the employee failed to live up to the standard could be disciplined even when then the conduct didn’t result in conviction of a crime.

The 2016 NFL Personal Conduct Policy,  https://www.documentcloud.org/documents/3438743-2016-NFL-Personal-Conduct-Policy.html eight pages long, went even further by providing examples of prohibited conduct such as threats of violence, domestic violence, cruelty involving animals, dishonest conduct, and “conduct that undermines or puts at risk the integrity of the NFL, NFL clubs, or NFL personnel.

NFL employees are given medical evaluations, assessments, counseling, and treatment. Then investigations are conducted (if warranted), players may be on paid or unpaid leave which is determined by the Commissioner. The employee may or may not be allowed to sit on the sidelines during team training or games. Once a decision is made to propose discipline, the employee receives the evidence, may make oral or written reply, The Commissioner makes the final decision. There is an appeal process in Article 46 of the CBA (collective bargaining agreement). https://www.documentcloud.org/documents/3438743-2016-NFL-Personal-Conduct-Policy.html

The National Anthem is an integral part of American sports. We honor the nation, the sacrifices of veterans, and celebrate the freedom of living in America. After reviewing the Personal Conduct Policy, Kaepernick’s protest by taking a knee during the National Anthem and the public uproar could be considered conduct that undermines the integrity of the NFL.

While Kaepernick the man has the right to free speech.   If he attended a professional baseball game and sat in his seat, I doubt we would have blinked. However, while suited up in the team’s uniform, taking a knee on the sidelines (work location), while being paid by the employer, is a violation which could result in disciplinary action.

The good news for the NFL was Kaepernick’s employment status.  He was similar to a temporary employee whose contract came to an end. It was up to the employer to determine to make a decision for the good of the employer. Kaepernick’s conduct was known throughout the world.

If I was the ER Specialist providing guidance, I would tell the employer to cut our losses as we didn’t have an obligation to continue his employment. This was egregious conduct with an impact on our organization and the NFL as a whole. No need to go through the time it takes to conduct an investigation, issue discipline, and then let the appeal process drag on. Just give him the appropriate notice that we will not extend his contract.

When you are a free agent, other NFL teams can offer a contract. Unlike an external employer, the internal employers all had access to his files, and the impact it had for the team and the organization as a whole. No need to make a reference check you know what the fallout has been.

While I applaud Kaepernick’s personal stand against injustice, his action had consequences. I don’t believe that he was unaware of the repercussions as his confidence and even-keeled personality seem to have survived.

It’s the public opinion that is still felt at the opening of the season. Several other players including non-African Americans who kneel or sit in support of Kaepernick. As an ER professional, I would have suggested the NFL had team meetings to include Union Officials, to review the Standards of Conduct Policy and how it could affect their employment standing. While as individuals they have the right to freedom of speech, when it affects the League, appropriate action may be taken. Encourage them to exercise their support in other ways – working for charities, marching (without NFL paraphernalia), etc.  Once warned, then as instances occur, deal swiftly, and attempt to stem the tide of misconduct.

While my private thoughts may conflict with my public ones, I think the NFL, as employer, did the right thing.  They didn’t do anything publicly to Kaepernick.  The lack of a new contract is a good business decision on the part of owners who seek to lessen their liability and increase their bottom line.   It’s not about whether or not Kaepernick is right or wrong but whether he has the potential to negatively affect the bottom line.

I know there are some who will strongly disagree with what I’ve said here.   As a private citizen, I disagree with what I said.  However, as an Employee Relations professional my thoughts fall back on the rules and his conduct which violate those rules.  The beauty of being in America is that we can agree to disagree.

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