There is nothing new about a consensus being reached among athletic officials or owners of sports teams that it is perfectly alright to violate the Constitutional rights --either the 1st or 14th Amendments -- of black athletes. For most of the first half of the 20th century, blacks were denied participation in the National Football League and in Major League Baseball, as well as complete denial of opportunities for participation in sports in all southern colleges. When colleges with black players scheduled games against those teams, those games were governed by a "Gentlemen's Agreement" among competing school officials, requiring that the black players not be allowed to travel or compete in those games when played at the southern institutions. The list is long of black athletes who suffered those indignities, and while there was widespread protest against such unsportsmanlike and unconstitutional practices, those athletes and those practices, by and large, have vanished from public memory. Those most remembered are the dominate black players whose athletic talents defined their teams, but were not allowed to play in highly anticipated and season- defining games. Willis Ward of Michigan against Georgia Tech in 1934; Wilmeth Sadat-Singh of Syracuse against Maryland in 1938; Leonard Bates of New York University against Missouri in 1941; Lou Montgomery of Boston College, experienced the double jeopardy of not being allowed to play against Southern teams throughout his career, 1939-41, even when those schools were the visiting team; and the undefeated 1951 San Francisco Dons who refused an invitation to the presigious Orange Bowl in Miami , because it was extended with an "if" clause, mandating that the two black players, Ollie Matson and Burl Toler, not be allowed to play.

In 1956 the Gentlemen's Agreement -- we thought -- came to an end when the Sugar Bowl in New Orleans invited Pittsburgh with its black player, Bobby Grier, to play all-white Georgia Tech. This was less than one year after the murder of Emmett Till and only six months after Rosa Parks ignited the Montgomery Bus Boycott. The Civil Rights Movement was gaining traction, and a large contingent from the New Orleans and Georgia Tech communities and the Governor of Georgia sought to bar Grier from the game. The Governor also railed against racially integrated seating at the game. Surprisingly, the players and students of Georgia Tech, civil rights leaders from multiple locales, whites who championed fairness in athletic competition, and supporters of Pittsburgh football prevailed in seeing Grier take to the gridiron and play in that game.

What is happening to Colin Kaepernick is tantamount to a modern day revival of the Gentlemen's Agreement among NFL owners, whose reasons for his denial of a slot on a NFL roster are so transparent and universal among themselves , that they do not need conversation, conspiracy or collusion. Kaepernick is guilty of offending a recent NFL practice, not a tradition, which started in 2009, when NFL players started appearing on the field for the national anthem and standing while it is played as a demonstration of patriotism, just as major league baseball has been doing before games since WWII. The incentive for the NFL, however, was as much about money as it was about patriotism, considering that the NFL received millions of taxpayer dollars from the Department of Defense and National Guard for patriotic displays and military recognitions before and during game intervals . Thus, the recent NFL "tradition" that Kaepernick refused to honor must be scrutinized as much as the origins and motivations for constructing Confederate monuments in public spaces, and divisive symbols such as the Confederate flag first being raised over South Carolina's state capitol in 1963, a reactionary response to the Civil Rights Movement.

Kaepernick's refusal to stand for the national anthem is not an infraction of either law or the player's union collective bargaining agreement with the NFL. What he did, in fact, is protected by the Constitution, though his demonstration was replusive in the "court of NFL owners opinion." And that is the crux of Kaepernick's problem and the dilemma of the NFL commissioner. The owners and their coaching and administrative employees are the arbiters of all issues regarding player personnel, though in a competitve league and under unionized contractual arrangements, both players and owners have options for the resolution of player personnel related issues -- they are simply traded, released, or seek other teams based on athletic market value. But Kaepernick is not on a roster singularly because of the "white elephant" the owners are reluctant to comment on. It is not just that he refused to stand, it is what his kneeling represented. His stated reasons for not standing for the national anthem were about "race" in America -- the same reasons that Tommie Smith and John Carlos gave the salutes at the 1968 Olympics that changed the world, or did it?

The NFL is the most gigantic golden goose in the history of professional sports, and owners do not want discussions of race to infiltrate the white fan base, potentially jeapordizing or impeding the laying of those billions of golden eggs. It is highly doubtful and there is no credible evidence to suggest that if and when a team signs Kaepernick, the NFL's brand identity, ticket sales, television ratings and cable subscribers will be adversely affected. Those concerns are determined by the quality of teams, marquee players, and the competitive nature of the games. It is useful to remember that the NFL had no problems with the $31 million that Pfizer paid for advertising Viagra on NFL spots last season, and much more over the past decade, despite concerns from family oriented fans that erectile dysfunction advertisements were inappropriate for younger viewers of NFL games. Those ads ran and the NFL ignored those complaints because of the revenue they generated, and because they had no measurable impact on television ratings. Of all the major sports, the NFL and its 32 franchise owners may be the most conservative brotherhood on social issues affecting the race of the majority of its labor force --black players. At least seven donated $1 million or more to Trump's inaugural committee, considerably more than the owners of other major sports franchises.

So, while the banishing of Kaepernick from the NFL is filtered through the lenses of citizenship, ethics, morality and patriotism, it must also be calibrated against the protection of the coffers of the golden goose. It is a powerful message from the NFL, a league of all- white owners, reflecting an irrational fear of the optics of potential pre-game on field conduct -- that runs counter to their personal politics and sensibilities, and what they believe to be those of their conservative white fan base and corporate sponsors -- from a labor force that is over 70 percent black. Balancing constitutionally protected basic individual rights against those elements is the dilemma of the NFL, and 32 individual owner decisions have been reached, all against Kaepernick. He has been "blackballed" and this has been confirmed by officials from several NFL teams who speak anonymously. To entertain any other reasons for Kaepernick not being on a roster is to suspend common sense.

It does not matter to NFL owners that in 1943 the U.S. Supreme Court ruled in West Virginia Board of Education v. Barnette that compulsory standing or saluting the flag is " not a permissable means of achieving national unity." Nor do they care to revisit the Court's eloquent statement written by Justice Robert Jackson : " If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." It is instructive to note at that time the protocol of the pledge of allegience was begun with individuals standing with the right hand placed over the heart, and after reciting the words " to the flag," the arm was fully extended slightly upwards towards the flag, palm down --too much of a resemblance to the Nazi salute -- and because of that it was changed during WW II to keep the hand over the heart. None of this is to imply or suggest that individuals be denied the right to pledge the flag or stand for the national anthem. To the contrary, it is merely a reminder of the constitutional right and subsequent Supreme Court reasoning for the other side of the American coin, and to contexturally illustrate how the NFL owners have avoided discussions of the law, opting for the promotion of the ludicrous pretext that Kaepernick is not a NFL caliber quarterback. Thus, the "silence" on the real issue --which is about his rights -- is the modern day equivalent and a hybrid of the Gentlemen's Agreement on the arbitrary restriction of black participation in sports.

Black athletes in the other major sports leagues -- MLB and the NBA -- are also vulnerable to Gentlemen's Agreements, considering there are 3 major sports leagues, 92 teams, and only 1 black principle owner. The new Gentlemen's Agreements will be much more complex than the old ones, because they do not seek to eliminate all blacks from the athletic competition -- that would create too much of problem for the survival of the golden goose. Instead, the new agreements will be more about eliminating certain types of blacks from sports --- those who have the audacity to speak the truth about race in America, and those who challenge the outer perimeters of expected behavior. The practice of preference for "certain types" of blacks will find parallels and egregious examples in American politics, particularly the Trump infested Republican party, though its origins precede his political ascendancy.

In the tragic and complex instance of Kaepernick, the owners have suspended the principle that all roster slots are based on merit. Considering that there are 32 NFL starting quarterbacks, 32 second-string quarterbacks, and 32 back-up quarterbacks, none of the owners can argue that there are 96 quarterbacks better that Kaepernick, who has led a team to a Superbowl. Neither can Roger Goodell, although he has limited authority and cannot place any player on a team roster. Still, that is not the larger problem. It is the fact that he has not yet demonstrated the moral courage to speak forthright and publicly on this issue, or to display the leadership that is consistent with his stature and $34 million annual salary. Thus, he, too, has become a problem and should not seek refuge in silence. In fact, he has become the drum major of inertia, and should the protests against the NFL gain enough momentum to threaten his security , while cornering him into a publicly indefensible position, let's hope he grabs a flag and pretends he's leading a parade. The NFL needs a summit --not silence --on the obvious, though it will take considerably more pressure than has been demonstrated to break the quietness.

So far, the NFL has found provisional reassurance in its banning of Kaepernick and has the upper hand where it matters most . Television ratings for the 2017 pre-season games was up 12% from last year, giving the NFL the luxury of a wait-and-see position to determine if the NFL's 15% black fan base -- and others -- expand enough influence to stage boycotts sufficiently strong and visible enough to have a discernable effect on ratings, the sale of NFL merchandise, game attendance, sponsor attitudes, or participation in NFL Fantasy Leagues, each directly tied to revenue. The NFL is immune to appeals to fairness, morality, and social justice, and this predisposition is even more pronounced in the era of Donald Trump. The NFL is about " wealth and power" and it will not concede anything without a struggle, and that struggle must include its share of some of the marquee players --black and white -- and leaders and leading organizations of our country -- black and white. Only those optics can flex enough muscle to produce a dividend of justice.

One thing is for sure, Kaepernick will not be the last NFL player to refuse to stand for the national anthem. The questions are what will the NFL do about it, and will the penalty be the proliferation of more Gentlemen's Agreements.

Al-Tony Gilmore, Ph.D. is Historian Emeritus of the National Education Association and was the first scholar to explore the intersection of sports and society with his book, Bad Nigger : The National Impact of Jack Johnson. He is the author of several noted books including, All the People : NEA's Legacy of Inclusion and Its Minority Presidents, and A More Perfect Union : The Merger of the South Carolina Education Association and the Palmetto Education Association. He wrote the introduction to the reissuing of E.B. Henderson's classic, The Negro in Sports. His reviews and articles have appeared in The New Republic, Huffington Post, Washington Post, Journal of American History, South Atlantic Quarterly, American Scholar, and Journal of African American History among others. He most recently served as Visiting Scholar in the Estelle and Melvin Gelman Research Center of The George Washington University.