Dallas Cowboys players kneel with their team in a show of solidarity before the national anthem during a 2017 NFL week 3 regular season game. Photo by James D. Smith via AP

Two Seyfarth Shaw lawyers are leading the defense of the Dallas Cowboys professional football team that faces a labor complaint over the owner’s demand that players not kneel in protest during the national anthem.

Joshua Ditelberg in Chicago and William Dritsas in San Francisco represent the Cowboys, according to records posted online this week by the National Labor Relations Board. Ditelberg is co-chairman of Seyfarth’s workplace restructuring and transactions group and is chief counsel for a company challenging the NLRB’s definition of “joint employment” relationships among businesses.

The NFL case follows Cowboys owner Jerry Jones’ comments that he would bench players who chose to kneel during the national anthem, part of a protest initiated by players throughout the National Football Association. Many players have continued to kneel during the anthem, drawing ire from President Donald Trump on Twitter.

Local 100 United Labor Unions, which represents workers in Texas, Arkansas and Louisiana, filed a charge earlier this month against the Cowboys and the NFL, arguing that Jones coerced or attempted to intimidate team members with threat of termination and violated federal labor laws that protect employees’ rights.

Employment attorneys say there are many legal considerations at play in the questions raised by the players’ protests. The NFL teams, which decide whether to terminate a contract, would have to consider the players’ protections under the National Labor Relations Act, strong collective bargaining agreements with the players’ union and the individual contracts. The teams also must consider federal and state anti-discrimination laws, and in some jurisdictions, employee protections for free speech.

The charge filed this month targets labor laws that protect employees’ rights to concerted speech, which gives workers the right to collectively speak out against conditions at work. Union advocates contend Jones attempted to silence those rights through his threat of benching players.

“The employer, evidenced by repeated public statements, is attempted to threaten, coerce, and intimidate all Dallas Cowboy players on the roster in order to prevent them from exercising concerted activity protections under the act by saying he will fire any layers involved in concerted activity,” according to the document filed with the Fort Worth Regional Office of the NLRB.

The union, led by organizer Wade Rathke, said the football players fall under the labor protection for workers that include taking actions about wages, hours and working conditions.

“By Jones’ actions, he is attempting to change working conditions and creating a hostile work environment for players,” the union said.

An NFL spokesman said the organization did not have a comment. Ditelberg and Dritsas of Seyfarth Shaw did not immediately respond.

Brad Livingston, a Seyfarth Shaw partner in Chicago and co-chair of the firm’s labor relations practice, told Bloomberg News last month that owners would need to prove that the players’ protest was harming the business.

“The employer would argue that it weakens the brand, it weakens the franchise in some way,” Livingston said. Livingston, according to the Bloomberg report, questioned whether an arbitrator would punish any NFL player who protested during the anthem.

Seyfarth, the Chicago-founded Am Law 100 firm, has ties to NFL teams. The firm represented the New York Jets in a sexual harassment case in New York state court in 2011. That case later settled. The firm has also represented Trump Organization business interests in contract disputes.

Ditelberg is the lead attorney for the company Browning-Ferris Industries in a challenge in the U.S. Court of Appeals for the D.C. Circuit to how the NLRB defines “joint employment” relationships between companies. Ditelberg argued in March in the appeals court that the labor board’s expanded standard was unworkable. The case has wide implications for companies across the country.

 

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