During the 2016 NFL season, San Francisco 49ers quarterback Colin Kaepernick drew national attention when he knelt during the national anthem before games to protest racial injustice. His kneeling sparked a national conversation, as well as a sharp divide between supporters of his cause, such as the 200,000 individuals who signed a petition to boycott the NFL, and those who perceived his actions as disrespect toward the military and the U.S. flag. Kaepernick’s pregame kneeling ultimately led to a social rights movement that has continued throughout the league. Kaepernick opted out of his contract after the 2016 season, but San Francisco’s GM later confirmed that the team would have cut him if he hadn’t opted out of his contract. Kaepernick has since stated that if signed, he would stand during the national anthem. Today, he remains an unsigned free agent.

On October 15th, 2017, Kaepernick filed a grievance against the NFL and its owners pursuant to Article 17 of the NFL Collective Bargaining Agreement (CBA). His grievance alleged that NFL owners colluded to keep him out of the league following his protests during the national anthem. Kaepernick is represented by Mark Geragos, a well-known “celebrity” criminal defense lawyer whose former clients include Michael Jackson, Scott Peterson, and Chris Brown.

Kaepernick’s grievance alleged that the NFL and its owners “colluded to deprive Mr. Kaepernick of employment rights in retaliation for Mr. Kaepernick’s leadership and advocacy for equality and social justice and his bringing awareness to peculiar institutions still undermining racial equality in the United States.” He alleged that this collusion nullified his right to free agency, in violation of the CBA. Under Article 17 of the CBA, teams are prohibited from entering into an agreement – express or implied – to refrain from negotiating with a player. However, this does not prohibit teams from deciding individually not to negotiate with a player.

Article 17 outlines the binding arbitration procedure for allegations of collusion. A system arbitrator, a neutral third party mutually selected by the NFL and the NFL Players’ Association, hears the case in a private arbitration proceeding. This mutual selection process is in contrast to highly publicized player discipline cases – governed by Article 46 – which gives the NFL commissioner sole arbitral authority unless he chooses to delegate the responsibility. Arbitrator Stephen Burbank has been tapped to hear Kaepernick’s case.

To prevail on his collusion claim, Kaepernick must prove by a clear preponderance of the evidence that collusion occurred, and that this collusion caused him economic injury. He must present Arbitrator Burbank with evidence that corroborates his assertion that two or more teams, or the league and at least one team, conspired in some way to deprive him of the opportunity to play in the NFL. Proof that certain NFL teams declined to sign him solely because of his race or political beliefs would be insufficient to prove collusion because collusion requires a joint agreement between teams. Additionally, objective proof that a player is being treated worse than players with similar abilities is insufficient to prove collusion, as evidenced by Barry Bonds’ unsuccessful collusion grievance against Major League Baseball in 2009. However, if Kaepernick succeeds, he is entitled to three times his compensatory damages.

Kaepernick is statistically superior to multiple starter and backup quarterbacks in the league: according to his 2016 Total Quarterback Rating (Total QBR), Kaepernick finished 23rd out of 30 eligible starters, and would be an upgrade over at least half of the league’s backup quarterbacks. However, Kaepernick has no legal right to employment within the NFL, regardless of his talent level. Although he would be an upgrade for multiple teams from a pure talent standpoint, teams are hesitant to sign him. This is perhaps due to the intense media attention he would bring, as well as the potential alienation of fans who do not agree with his activism. Ultimately, expressions of political beliefs are not protected within the workplace, and NFL teams – which are private entities – are entitled to make business decisions that are within the best interests of their respective organizations, provided that they do not violate the law or the CBA.

Multiple NFL executives, including the Commissioner, the Executive Vice President of Football Operations, and the Senior Vice President of Player Engagement, will be deposed and were asked to turn over all cell phone and email records in relation to Kaepernick’s grievance. Additionally, multiple team owners, including Jerry Jones of the Dallas Cowboys, Robert Kraft of the New England Patriots, Bob McNair of the Houston Texans, Paul Allen of the Seattle Seahawks, and Jed York of the San Francisco 49ers, were also on Kaepernick’s deposition list. These owners were allegedly selected based on public statements made about either Kaepernick specifically or sideline protests more generally.

If Kaepernick loses his grievance, he can petition a federal judge to vacate Arbitrator Burbank’s decision. However, as evidenced by Deflategate and other similar attempts to challenge arbitration decisions, Kaepernick is unlikely to prevail. This is in part due to the high level of deference that federal courts are obligated to give an arbitrator’s award under the Federal Arbitration Act and subsequent judicial decisions interpreting its application.

By all objective metrics, Colin Kaepernick should be employed within the NFL. However, the NFL is a collection of business entities, each of which is entitled to make independent judgments regarding the employment of potential players. Ultimately, irrespective of moral questionability, multiple teams’ individual decisions not to sign Kaepernick are neither illegal under the law, nor under the CBA. Thus, absent clear evidence of an agreement between teams, Kaepernick is highly unlikely to prevail in his collusion grievance.

Nikki Sullivan

 

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