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Players who choose not to be vaccinated have rights, but those rights will be hard to enforce

The fact that the NFL and NFL Players Association have not agreed to make COVID-19 vaccinations mandatory means that (Captain Obvious alert) they’re not mandatory. This also means that players who choose not to be vaccinated should face no adverse employment action because of it.

That’s easy to say. It’s a lot harder to enforce.

The fact that Bills G.M. Brandon Beane said the quiet part out loud -- that he would cut a non-vaccinated player over a vaccinated player because there are advantages to having more vaccinated players -- underscores how delicate the issue will be. If Beane had said nothing publicly, opting instead to keep his plan to himself before acting on it, what would have happened? Some players may have groused about the possibility that the vaccination status was a factor in their release. It would still be very difficult to prove, absent a smoking gun like, for example, the G.M. saying the quiet part out loud.

The challenge for the league and the union will be to ensure that coaches, General Managers, and/or coaches won’t act against players who choose not to be vaccinated, and to want to protect them. Those players have the same right to not be vaccinated as players have to not stand during the national anthem. By rule, it’s a choice they can make. Their job status should not be affected by it, in any way.

The problem is that the teams will know which players have and haven’t been vaccinated. They’ll know because vaccinated players aren’t required to be tested daily. Also, vaccinated players can be in the facility the day after a game.

Other protocols that could create a tangible benefit to cut unvaccinated players likely are coming. If/when the league relaxes the rules applicable for an entire team based on the percentage of vaccinated players on the team, then the thing Beane said more likely becomes the thing teams do.

So how will the league and the union protect the players who choose to not be vaccinated? And how will anyone know that the league and the union are motivated to do so? While many (including me) believe that everyone should be vaccinated, the league and the union have agreed to not make vaccinations mandatory. That agreement is meaningless without a strategy for protecting the players who choose not to be vaccinated, especially if teams get greater overall freedom if a certain percentage of the locker room has gotten the shots.

The fact that Beane said what he said -- and the fact that the NFL had to tell Beane not to say things like that -- underscores the issue. But if the message from the league to the teams is “just don’t say it if you’re going to do it,” that really doesn’t protect the players who choose to not be vaccinated.

Politically, it’s almost a mirror image of the anthem issue. Those who insist on players standing for the song tend to lean right. Those opposed to vaccinations tend to lean right. Regardless, the players have the right to not stand and to not get stuck.

The difference in this context comes from the fact that the league and union are far more likely to be aligned as to the question of whether players should be vaccinated than they are to the question of whether players should stand for the anthem. This reality puts players who chose not to be vaccinated even more at risk of getting cut in favor of someone who did.

Unless the league and the union come up with a clear, enforceable strategy for protecting players who choose not to be vaccinated, those players are at very real risk of finding themselves on the outside looking in. Once players and their agents understand that most if not all General Managers would say the same thing Beane said if attached to a polygraph or medicated with Sodium Pentothal, and once players and their agents think through how difficult it will be to prove that they were cut and/or shunned for not being vaccinated (the Colin Kaepernick case would be instructive on this point), they may decide that it’s in the players’ best interest to get vaccinated.

This means that, even though there isn’t a vaccination mandate, as a practical matter there is. Teams are more likely to share Beane’s beliefs, the league isn’t likely to do anything as long as teams keep their mouths shut, and the union -- which said nothing about Beane’s comments -- isn’t likely to take up a fight that would tend to undermine the greater good of getting everyone vaccinated.

So that’s the takeaway, for any player or agent reading this. Unless the player has become a core member of a given roster, any player who chooses not to be vaccinated is at risk of being released. The farther down the player sits on the overall roster hierarchy, the greater the risk of not making or staying on the 53-man roster due in whole or in part to the non-vaccinated status.