Panelists discuss national anthem protests, First Amendment rights

The ongoing controversy regarding athletes speaking out and demonstrating on societal and government issues was the topic of discussion at a special event on Thursday sponsored by the School of Law’s Center for the Advancement of Sport and the Office of Inclusive Excellence.

“Freedom of Expression: The First Amendment and Athletics,” held in the Jeannette Martin Room in Capen Hall, featured four distinguished panelists with law or sports backgrounds: Paul Cambria, a First Amendment attorney with Lipsitz Green Scime Cambria; Lucinda Finley, Frank Raichle Professor of Law in the UB law school; Lorenzo Alexander, linebacker for the Buffalo Bills and vice president of the National Football League Players Association (NFLPA); and Shane Costa, a certified NFLPA agent and director of football operations at Pillar Sports Management LLC.

The panel was moderated by Nellie Drew, director of the Center for the Advancement of Sport.

Alexander and Costa’s NFL backgrounds centered much of the day’s discussion on the protests by players during the playing of the national anthem that were led by Colin Kaepernick, a former quarterback for the San Francisco 49ers. Kaepernick sat and knelt during the national anthem throughout the 2016 season because of his views of systemic racial discrimination throughout the United States.

Kaepernick’s actions prompted players across the country to join the movement, and led to Kaepernick’s not being pick up as a free agent after the 2016 season, as well as the creation of a policy by the NFL that banned kneeling during the anthem.

The controversial NFL policy drew significant national media attention. Opponents argued the policy violated players’ rights to free speech and silent protest.

Cambria told those attending the panel discussion that he disagreed with that idea, saying the First Amendment is often misconstrued and does not apply between two individuals.

“One of the biggest misconceptions by some people is that the First Amendment applies individual to individual, when really it applies to the government,” Cambria said. “The Bill of Rights is something that protects you from the government. (Kaepernick) had a legitimate protest, but the NFL decided that they were going to punish him, and they punished him by not employing him. That’s not a violation of the First Amendment.

“People have to understand that in exercising your First Amendment rights, there may be consequences because it may be a message that people take offense to and hold it against you,” he said. “Unless if it is some kind of government entity, they can do it.”

After outlining why it was legal for the NFL to silence the speech of its players, the discussion turned to why the owners agreed to do it. Alexander said he believes the owners were concerned about how their teams’ financial situation was affected by the protests.

“The issue (with leaving Kaepernick unsigned) was never really First Amendment in our minds, but it was really more so from the (Players Association) side of all 32 owners because they do have an anti-trust exemption that they cannot collude together versus a player,” Alexander said. “I know that’s probably not what happened because all 32 owners don’t have the same political views or thoughts about what Colin did.

“What I’ve learned from playing in the NFL is that owners typically move if it only affects their economics. They don’t necessarily care about the patriotism (aspect of the protests) or whether they are Republican or Democrat. Colin’s action in itself, I don’t think it bothered them. But, because sponsors decided to walk away from some things, that’s what bothered them.”

Costa agreed the protests themselves weren’t the issue with many NFL owners; rather, it was the public reaction to it and the implications toward the league’s revenue generation.

“If you look at the league as a whole, it wasn’t until many players started making that decision to join him (Kaepernick) that it really started to create an issue,” Costa said. “Colin kept his job for a whole year, but he started a movement that resonated with players across the league. All it took was that little bit for it to gain steam in the media that you saw owners in a panic I’ve never seen before because it affected their bottom line.”

Following the main discussion, panelists took questions from the audience, which was made up of predominantly UB law students. One audience member asked whether the degree of prominence of an athlete can impact his ability to participate in a protest like kneeling during the anthem.

“At the end of the day, guys are able to do and say things based on who they are in leverage,” Alexander said. “Guys like Colin, Peyton Manning or Aaron Rodgers have more freedom than some other guys, but there’s also strength in numbers, too.”

“If Tom Brady wanted to kneel for every national anthem, he’d still be throwing the ball in the Super Bowl,” Costa added. “But, if it’s the 53rd player on the roster — the very last guy with a job — that player’s probably going to be cut.”

When Alexander was asked if there was anything he would go back and change about the national anthem protests, he responded that the meaning of the protest could’ve been conveyed better to the general public, as well as keeping the message consistent with the players.

“Some of the messaging could have been better as far as getting it out to the public, Alexander said. “You had Kaepernick saying one thing, Malcolm Jenkins saying something different and Julius Peppers saying something different. With 2,000 players, it’s hard to create a continuity within the messaging, so maybe (we should’ve thought) that through a little better so that we’re all on the same page.”

Finley noted the strategy the players used was the best model for a protest.

“I think as protests go, to the extent that it was extremely peaceful, didn’t obstruct anybody and didn’t interfere with anybody else, (this) was the best way to go about it,” she said. “Nobody was trying to shout over the national anthem or prevent people who wanted to express different feelings about the national anthem from doing it.

“I think it actually is the model of very peaceful, respectful protest that gets your message across and doesn’t interfere with anybody else’s expression.”