Ever since Colin Kaepernick's first national anthem protest during the 2016 NFL preseason, armchair quarterbacks have been suggesting ways it could have been better handled.
President Donald Trump even said he would have suspended Kaepernick after that first protest — for one game, then two, then the season — in order to stop it quickly.
Now, after over a year of protests, players at nearly every game have been seen kneeling, sitting, stretching, locking arms, and even skipping the anthem entirely.
NFL Commissioner Roger Goodell finally issued a statement Tuesday, saying that every player should stand:
The controversy over the Anthem is a barrier to having honest conversations and making real progress on the underlying issues. We need to move past this controversy, and we want to do that together with our players.
Goodell's statement opened the door for possible disciplinary actions to be taken against players who chose to go against his new policy — but according to Judge Andrew Napolitano, that policy may be on shaky legal ground.
Napolitano explained to Fox News host Neil Cavuto on Thursday:
"If the owner does punish players for taking the knee during the 'Star-Spangled Banner,' the players' union has indicated that they'll get involved. If they do get involved in court, they'll win. The reason they'll win is because the law in the United States, for the most part (largely depends where you are), favors the players unless taking the knee materially interferes with the owner's income.
If the owners are losing ad sales and media stream revenue or if the players are losing games because some are taking the knee, then the owners can discipline those that take the knee. If they're being disciplined for taking a knee because the owners want them to conform to their own standard of patriotism or their own standard of politics, the law prevents them from being disciplined for that reason."
He went on to explain in further detail:
"I'll give you an example. In New Jersey, our home state, along with New York, California, the District of Columbia, grants workplace protection for expressing politics. The employee can express a political opinion in the workplace unless that expression interferes with the work product.
So if there is a clear loss of revenue to the owners because of things happening like the pictures we're seeing now, then the owners can- with legal protection- discipline those that impair the work product by taking the knee. If they cannot show a loss of income or an impairment of the work product, they cannot discipline those that take the knee.
The reason is the states that grant the protection, and, Neil, almost all of these stadiums are owned by the government. The team management is a tenant. When you're a tenant on real estate owned by the government, you cannot compel political or patriotic conformity with others who are on the real estate with you. That's been Supreme Court jurisprudence since the 1960s."
You can watch the full segment below, via Fox News: