NFL team owners this week decided that players will no longer be allowed to take a knee during the playing of the national anthem. And if they do, they will be subject to punishment and their team will be subject to fines.

The owners did provide the players with an alternative, of sorts: If a player does not wish to stand and salute the flag, he can stay in the locker room and wait for the anthem to end. This new league policy is meant to enforce a particular vision of patriotism, one that involves compliance rather than freedom of expression.

The policy is also illegal — for a host of reasons.

The clearest illegality derives from the fact that the league adopted its new policy without bargaining with the players union. When employees, including football players, are represented by a union, the employer — including a football league — can’t change the terms of employment without discussing the change with the union. Doing so is a flagrant violation of the employer’s duty to bargain in good faith.

If, as the NFL Players Association says, the employer implemented this change on its own, the policy is flatly illegal for that reason and should be rescinded by the league.

Kneeling is also a workplace protest

But the new policy has other, deeper problems. Just this week, the Supreme Court issued a major decision that clarifies exactly why the players’ anthem protests are protected by our labor laws. In this decision, Epic Systems Corp v. Lewis, the Court concludes that the National Labor Relations Act is, at its core, designed to “protect things employees ‘just do’ for themselves in the course of exercising their right to free association in the workplace.” Put plainly, the Court holds that collective actions engaged in by employees at work are the heart of labor law’s concern.

In Epic, the Court uses this reasoning to hold that pursuing class-action arbitrations is not something labor law protects. Whether you accept that view or not — I do not — it is impossible to come up with a clearer example of something employees “just do for themselves” as a means of “exercising their right to free association in the workplace” than the anthem protests. They are a perfect example of the type of concerted activity that labor law is designed to protect.

Some might object that labor law does not protect these protests because they’re about something other than work: They’re about police brutality, or systemic racism, or the president’s view of what patriotism means. Of course, in some sense this is exactly what the protests are about. But in a more direct, literal sense, what the players are protesting is the requirement that they stand during the national anthem. That’s what the protest is: a refusal to stand.

Now that the owners have made it a workplace rule to stand during the anthem or stay in the locker room, any player who takes the field and takes a knee is protesting an employer rule. And that is unquestionably protected by federal labor law.

There is a potentially important caveat here, one that comes from a perverse and byzantine part of our labor law called the “partial strike” rule. A partial strike occurs when employees refuse to participate in only one workplace rule rather than ceasing to work entirely. Such strikes are not protected by the law.

This partial strike rule may mean that players who refuse to comply only with the anthem rule, but otherwise fulfill their obligations to the league, can be disciplined for doing so. The rule is perverse because any player who decided to protest the anthem rule by fully striking — not playing at all — would be protected.

In a perfect world, we would get rid of this silly doctrine, but until that happens, if the owners chose to enforce the partial strike rule, they might just be prodding the protesting players toward a complete strike.

The free speech case is also strong — especially given Trump’s involvement

Finally, there is a serious free speech problem with the owners’ rule. In general, the constitutional right to free speech applies only to censorship by government entities, not to what a private sector employer like the NFL does. But there are two reasons why the players have a viable free speech claim.

The first is that the president of the United States has been actively involved in the league’s decision-making process. In an earlier round of the protest dispute, President Trump called on the league to discipline Colin Kaepernick for his leadership of the anthem protests and threatened to use the tax code to punish the NFL if they allowed them to continue. Vice President Mike Pence walked out of a 49ers game where anthem protests were planned.

What’s more, the owners have made clear that their adoption of the new rule was made in response to presidential intervention: They believe that if they do not ban the protests, the president will continue to make the protests a national issue and thereby negatively affect the league’s income stream.

As Dallas Cowboys owner Jerry Jones told Sports Illustrated, Trump “certainly initiated some of the thinking, and was a part of the entire picture.” When the president and vice president of the United States are this intimately involved in encouraging a private employer to adopt a workplace rule, the Constitution should have something to say.

Applying the Constitution in this context is justified but would require judges to break some new legal ground. But even if the courts refuse to apply the Constitution directly here, the players ought to have at their disposal another powerful legal tool. The law of most states declares that employers may not fire, or otherwise discipline, employees for reasons that violate the state’s public policies.

That’s why, for example, employees cannot be fired for fulfilling jury duty, or for refusing to perjure themselves on the employer’s behalf. If an employee is disciplined for one of these reasons, he is entitled to sue the employer (through what’s called a public policy tort).

It is hard to imagine a public policy — in whatever state you choose — more important than the policy in favor of free speech on matters of public concern. Indeed, this public policy is enshrined in the constitution of every state in the nation. Given that freedom of speech is one of our most important public policies, courts should follow the lead of the famous Novosel decision, which held that an insurance company worker who declined to lobby legislators for a particular bill as the company had requested, and who stated his opposition to that bill, could not be dismissed.

The upshot of that decision is that an employer that disciplines an employee for engaging in peaceful speech has disciplined an employee in violation of public policy.

There would, of course, need to be limitations on this rule, and not everything an employee says regardless of context or form could be protected. But the NFL anthem protests are not a tough case. We have players engaged in fully peaceful speech acts, on a subject of core national importance, and in a context where they are literally debating with the president and vice president of the United States.

Given these facts, if the NFL takes action against the players, the league will violate public policy and should accordingly be vulnerable to legal action.

Benjamin Sachs is the Kestnbaum professor of labor and industry at Harvard Law School. 

The Big Idea is Vox’s home for smart discussion of the most important issues and ideas in politics, science, and culture — typically by outside contributors. If you have an idea for a piece, pitch us at thebigidea@vox.com.

Last Sunday, Jerry Jones, the owner of the Dallas Cowboys, said he would bench players who did not stand during the national anthem. This threat was publicized nationally and applauded on Twitter by President Trump, who summarized the two men’s shared view: “Stand for Anthem or sit for game!”

On Wednesday, the president elaborated on his views, telling Fox News that the NFL “should have suspended” Colin Kaepernick for kneeling during the anthem because “you cannot disrespect our country, our flag, our anthem — you cannot do that.” It is quite possible the players have First Amendment protection against retaliation of this kind. The First Amendment generally protects citizens against the suppression of their speech by the government, not private entities like their employers. But when the president uses the power of his office to intimidate business owners into suppressing the speech of their employees — with both implied threats and specific ones — the possibility of a First Amendment violation becomes quite real.

Whatever the Constitution has to say about the matter, however, it is manifestly clear that Jones’s threat violates federal labor law. Benching, or otherwise disciplining, players who engage in anthem protests would be illegal.

The National Labor Relation Act forbids employers from taking adverse employment actions against workers who are engaged in “concerted activity for mutual aid or protection.”

So the first part of the labor law analysis, and the easiest, is whether “benching” counts as an adverse employment action of the sort the law prohibits. Some commentators have suggested that benching is not a sufficiently severe penalty to count (as they concede a heavy fine, or loss of job, might be). But anyone who has ever played sports, or watched sports, or had a kid who played sports, knows that benching is adverse. “Getting benched” is what happens to you when the coach wants to discipline or punish you. When your job is playing sports, getting benched is a pretty good definition of what adverse employment action means.

Employers can’t punish employees for “concerted activity for mutual aid”

The real issue in the anthem protest cases is whether the players’ actions constitute “concerted activity for mutual aid or protection,” which is what federal labor law protects. Again, the “concerted” prong is easy: There’s no question that the players involved are acting in concert with one another — i.e., together. The question is whether their anthem protests — which originated and remain directed in large part at questions of racial equality and justice, including the issue of police violence, as opposed to more traditional labor concerns, such as working conditions — are the kind of concerted activity that labor law shields against retaliation.

The fact that the protests are unmistakably “political” does not take them outside the scope of labor law. The Supreme Court, in Eastex v. NLRB, established — and the National Labor Relations Board has affirmed repeatedly — that labor law protects workers who engage in certain kinds of political advocacy. The limitation is that the political advocacy, to be protected by labor law, must relate to the employees’ status as employees. (Eastex involved Texas workers who, in a flyer promoting union solidarity, also called on workers to fight against a state “right to work” law and for minimum wage protections.)

And although, at first blush, the anthem protests may not seem to be about the players’ lives as players, there are several ways in which they most definitely are.

First, race discrimination — and certainly the acute kind that manifests as police violence — affects the targets of that discrimination across all spheres of their lives. Police violence directed at African-American men may happen away from the workplace, but that can’t mean that police violence has no impact on African-American men at work. Indeed, the idea that police violence, and other forms of race discrimination, can somehow be cabined away from work, just because that discrimination occurs away from work, is false. So when players protest societal discrimination against African-American men, this is a protest that concerns their lives as employees.

To be clear, labor law would not need to treat all types of off-work dynamics that potentially affect work as protected in order to treat the forms of race discrimination under protest here as protected. The law must draw lines of this sort all the time, and distinguishing things like racially discriminatory police violence from other forms of off-work behavior should be manageable.

Second, the NFL and the agreement the league has with the players stresses repeatedly that being an NFL player involves more than what happens on the field. For example, paragraph two of the standard player agreement states that a player must pledge to “conduct himself on and off the field with appropriate recognition of the fact that the success of professional football depends largely on public respect for and approval of those associated with the game.” In other words, the job of being a football player involves much more of what in many other occupations might be classified as non-work or non-employment matters. But the league can’t expand the definition of what it means to be an NFL player solely in order to restrict player conduct. Having defined the job as a public one, the league must then own the fact that players’ advocacy efforts around “public” issues — including race discrimination — concern the players as employees.

Protesting unfair punishment by bosses is core protected activity

Third, although all the protesters have solid protection from labor law for the reasons I’ve outlined, it would be even more blatantly illegal to bench anthem protesters in cases in which they are taking a knee as a means of showing support for teammates threatened with discipline for their actions — whether those threats come from a team owner or the president of the United States. For these protesters, taking a knee is a means of, among other things, expressing a view about what should and should not constitute a disciplinary offense at work. That kind of protest is the heartland of what labor law protects: It is absolutely core “concerted activity for mutual aid and protection.”

One final note. Even if anthem protests are protected by federal labor law, the players’ collective bargaining agreement could, in theory, waive their right to engage in them. The Supreme Court, however, has held that any such waiver has to be clear and unmistakable, and there is no such clear and unmistakable waiver in the players’ agreements that I’m aware of. Certainly, the language from paragraph two of the agreement — about conduct “on and off the field,” quoted above — doesn’t meet the standard.

Nor does language in paragraph 11 of the agreement, which allows a team to fire a player if the player “has engaged in personal conduct reasonably judged by Club to adversely affect or reflect on Club.” Again, it’s not specific enough.

There apparently also is a mention of the anthem in the “game operations manual” that suggests that players “should” stand during the anthem. It is unclear (at least to me) whether or how this manual is incorporated into the collective bargaining agreement. But the use of “should” rather than “must” makes it less than “clear and unmistakable” that the players’ rights in this respect have been waived.

The longer this goes on, the more evident it becomes that the players have a legal right to engage in the anthem protests. Labor law provides one such source of protection. Noah Zatz, a law professor at UCLA, has argued that Title VII, which forbids racial discrimination, provides another source.

Whatever the source of protection, however, the illegality of the threats issued by Jones and amplified by the president is clear.

Benjamin Sachs is the Kestnbaum professor of labor and industry at Harvard Law School. A version of this piece first appeared on the site OnLabor.org.

The Big Idea is Vox’s home for smart discussion of the most important issues and ideas in politics, science, and culture — typically by outside contributors. If you have an idea for a piece, pitch us at thebigidea@vox.com.