November 6, 2017

Kaepernick's Got a Case

Patrick McLaughlin

Director of the Program for Economic Research on Regulation

Jonathan Nelson

Summary

The NFL's guideline for standing during the national anthem shows the importance of legal language.

After sparking controversy by not standing for the national anthem, former San Francisco 49ers quarterback Colin Kaepernick recently filed a grievance against the National Football League, claiming that a handful of NFL owners are colluding to keep him off the field. His case, and the controversy surrounding football players and the national anthem in general, may have never arisen had the league used more precise rules, rather than vague guidelines, to define expectations for player conduct.

The controversy became particularly heated after dozens of other players around the league joined in. Because of Kaepernick's status – whether he likes it or not – as the "face of the movement," teams may hesitate to sign him. Baltimore Ravens owner Steve Bisciotti even appeared to admit that fear of a fan backlash factored into his own team's hesitancy.

But did Kaepernick break any rules?

Not according to the NFL's game operations manual, which states that players "should" stand, but not that they "shall" or "must" stand. Anyone who has ever tried to make sense of legalese contained in the thousands of pages of policy text produced in Washington knows that the difference between "should" and "shall" is like the difference between night and day.

Here's why "should" is a key word in the anthem controversy. In the NFL, teams essentially have the power to release any player at any time. In some cases, that leaves the team on the hook to pay the remainder of the player's contractually guaranteed salary. But if a team releases a player "with reason" – e.g., for conduct detrimental to the team – it may choose not to pay the remainder (subject to arbitration and/or legal challenge).

In order for a team to fire a player with reason, his conduct generally has to violate NFL rules, team rules or the terms of his contract. It seems unlikely that any team would admit to firing a player because he kneeled during the anthem, for fear of a swift protest and possible lawsuit from the players' association. Again, the relevant word – "should" – indicates that standing is a recommended practice, but not a requirement.

Now consider the following federal regulation, a USDA rule pertaining to humane housing conditions for dogs, that contains both words (emphasis added):

"Dealers, exhibitors, and research facilities, in developing their plan, should consider providing positive physical contact with humans that encourages exercise through play or other similar activities. If a dog is housed, held, or maintained at a facility without sensory contact with another dog, it must be provided with positive physical contact with humans at least daily."

The use of "should" in the first sentence is quite deliberate, as is the use of "must" in the second sentence. It's also clear that while the first sentence is optional, the failure to follow the guidelines set up in the first sentence would make the second sentence obligatory.

Both the NFL and federal examples are fairly clear. But perhaps the line between regulatory requirements and guidelines isn't always so clear.

When does a guideline that is theoretically optional become realistically obligatory? The answer depends on the consequences of ignoring those "optional" guidelines.

Kaepernick might argue that disregarding a mere guideline led to his ongoing unemployment. Meanwhile, the failure to follow some government guidelines could lead to additional scrutiny from regulators, competitors or customers. The reality is that when a regulatory body issues a guideline, it generally expects it to be followed.

So if a regulator expects a guideline to be followed, why not issue an actual rule with a binding word like "must?"

In the NFL's case, every rule constraining player conduct is part of the collective bargaining agreement between the players' union and team owners. The NFL can issue guidelines without going through that give-and-take, while actually requiring players to stand would probably involve some other concession to players.

Regulatory agencies can also issue guidelines to avoid the more difficult process of making actual rules. Rather than collective bargaining, they circumvent the notice-and-comment process.

Even in the NFL, we see the importance of legal words in influencing the careers of players. In Washington, it will be worth keeping an eye on the use of guidelines by regulatory agencies. It has always been easier to issue guidelines instead of actual rules, and that practice may become more frequent with an administration that is increasingly scrutinizing agencies' every move.