“Anybody that don’t stand up for the anthem oughta be out of the country. Period. What got ’em where they’re at? The United States.”
Those are the words of Richard Petty, the co-owner of Richard Petty Motorsports and former NASCAR champion. Petty offered them during an interview with Associated Press on Sunday. Petty would fire any member of his team who, like a number of professional athletes, partakes in a form of protest during the national anthem.
Could Petty, or any other NASCAR team owner, actually carry out such a threat?
The answer is almost certainly yes for team members who are employed without employment contracts. As to team members on contracts, provisions in those contracts could prove complicating.
First consider NASCAR team members who are “at-will” employees—meaning they are employed without a contractual relationship to the team. They would be the easiest to fire.
At-will employment allows the employer to end the relationship at any time, for any reason, provided that reason does not constitute an unlawful form of discrimination (such as discrimination on the basis of race, religion, sex, national origin, age, disability, or veteran status). The First Amendment will not protect this NASCAR team employee from being fired. To be sure, the First Amendment guarantees every American the right to protest peacefully, but the guarantee is only that the government will not punish. In contrast, the First Amendment does not protect an employee of a private entity, such as a NASCAR race team, from expressing views that could lead to his or her firing. Therefore, a NASCAR team owner who is upset over national anthem protesting would likely be able to fire an at-will team member without difficulty.
A more complicated scenario would emerge if the protesting employee has a contract with the team. A driver would likely fall in this category. In that case, the employment contract may provide language that authorizes a firing for certain kinds conduct that the team considers inappropriate. If the language is vague or indeterminate on whether protesting during the anthem qualifies as a fireable offense, the employee may be able to contest the firing in court by filing a breach of contract and wrongful termination lawsuit. In addition, when an employer fires an employee who has an employment contract, that contract might contain language requiring the employer to make future payments.
SI.com has obtained a copy of an employment contract between a race team and a crewman. The contract lends considerable discretion to the team in deciding whether to terminate the agreement “for cause,” meaning because the employee has violated a contractual term. According to the contract, the team reserves the right to fire the employee if any one of numerous circumstances occurs. Such circumstances include:
• The employee fails to perform his duties and responsibilities as assigned to him by the team, and as determined by the team in its sole discretion.
• The employee intentionally disregards a team policy, NASCAR rule or NASCAR regulation.
• The company develops a reasonable belief that the employee violated the law.
• The employee fails to work with a team sponsor in a civil manner and consistent with team policies.
• The employee commits any act of dishonesty or breach of trust and it results in damage to the company’s image or reputation.
Notice the contractual requirement that the employee follow “team policies” and cooperate with team sponsors. Such general requirements would probably be enough for the team to fire a protesting employee, at least provided a team policy required participating in the anthem or if it became clear that a sponsor expected participation.
As discussed in the analysis of whether an NFL team could “fire” a player for protesting during the anthem, there may be other legal recourses for a NASCAR team member who is fired over a protest. The employee could pursue a charge with the Equal Employment Opportunity Commission, which bars employers from discriminating or retaliating against employees. There might also be state and municipal laws that, to some extent, guarantee freedom of expression.
Most likely, however, NASCAR team owners could fire employees who protest during the anthem without significant legal repercussion.
Whether those owners “ought to” fire is an altogether different question. While Petty and other owners view a protest during the national anthem as unpatriotic and disrespectful, other owners might view it more as an expression of one’s constitutional right to free speech—a right that many Americans have given their lives to protect.
Michael McCann is SI’s legal analyst. He is also an attorney and the Associate Dean for Academic Affairs at the University of New Hampshire School of Law.