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“The economic sanctions that made McCarthyism such an effective measure of political repression were based just about 100 percent on the process of having somebody be identified as a political dissenter by a government institution and then fired by a private employer," said retired Yeshiva University historian Ellen Schrecker. "The American way of political repression is really much more firing people than throwing them into prison or assassinating people." If owners wanted to crack down on unionized athletes protesting during the national anthem, they would need to show some concrete way it was hurting them, said Brad Livingston, a partner at law firm Seyfarth Shaw. “The employer would argue that it weakens the brand, it weakens the franchise in some way,” said Livingston, who chairs the firm’s labor relations practice group. But he said he doubted that arbitrators would sanction firing a player for kneeling or locking arms during a national anthem. Teams don’t currently mandate that players stand during the national anthem, said Gould, and union contracts restrict their ability to unilaterally create new rules while a contract’s in place. Union contracts don’t give players unlimited license to say whatever they want, but arbitrators who resolve contractual disputes tend to show some deference to free speech rights, according to Gould. In a high-profile 2000 ruling, an arbitrator halved (to two weeks of regular season) the length of Major League Baseball’s suspension of relief pitcher John Rocker for derogatory comments to Sports Illustrated about gay people, foreigners, and non-whites. Federal law provides some limited restrictions on companies’ ability to silence employees’ speech, like the ban on retaliating against workers for filing Civil Rights Act complaints. The 1935 National Labor Relations Act protects private sector employees’ right to take collective action “for mutual aid and protection,” something the U.S.
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