Colin Kaepernick’s collusion grievance is in many ways unprecedented. And that is why its outcome is so unpredictable.
Kaepernick, the former quarterback for the San Francisco 49ers who last year kickstarted the national anthem protests that have roiled the National Football League into this season, alleges that teams have essentially blackballed him over his social activism. His claim involves all 32 teams and one very unlikely character: President Donald Trump, who is named five times in the grievance and cited as an “organizing force” in the alleged collusion.
On a legal level, the case is also unparalleled because no similar claim has been filed against the NFL under the current collective bargaining agreement. While the NFL Players Association has alleged collusion in the past, its most recent claim was taken to court and heard by a judge. This time, under the CBA agreed to by the league and its players in 2011, an arbitrator will make the final ruling.
And so even at a time when the football world has grown accustomed to contentious legal battles—from the Tom Brady “Deflategate” case to the ongoing one over Dallas Cowboys running back Ezekiel Elliott’s suspension—the Kaepernick case will almost certainly be different.
In theory, this shouldn’t drag on for months, but no one involved claims to know a realistic timetable. It depends in large part on how extensively the two sides battle over Kaepernick’s right to “reasonable and expedited discovery,” as outlined in the CBA. That process potentially includes obtaining documents, such as emails, and depositions, which could force everyone from coaches, general managers and team owners to go on the record about any actions or conversations they participated in related to Kaepernick’s employment in the league. The league is likely to oppose at least some of those requests.
Matt Adler, chair of the arbitration group at Philadelphia-based law firm Pepper Hamilton, says “how many discovery fights there are” could significantly affect the length of the process.
President Donald Trump shakes hands with New England Patriots owner Robert Kraft during an event honoring the Patriots at the White House in April. PHOTO: JOSHUA ROBERTS/REUTERS
Kaepernick’s grievance notes that commissioner Roger Goodell has said the NFL is a “meritocracy.” Kaepernick, 29 years old, took the 49ers to a Super Bowl and NFC Championship game during his time with the team. Last year, he went 1-10 as a starter and threw 16 touchdowns with four interceptions, while posting the 17th best passer rating in the league. Also last year, Kaepernick began kneeling during the national anthem, a protest he said was designed to draw attention to racial injustices and police brutality.
These national anthem protests and the social issues behind them were a focal point of a meeting on Tuesday between the league, its owners and players. Afterwards, Philadelphia Eagles safety Malcolm Jenkins said Kaepernick was invited but did not attend. Kaepernick’s lawyers disputed that in a statement, saying other players wanted him to attend but he was not invited. “Mr. Kaepernick is open to future participation on these important discussions,” the statement said.
The grievance says it is “no longer a statistical anomaly but instead a statistical impossibility that Mr. Kaepernick has not been employed or permitted to try out for any NFL team.”
The NFL and NFLPA declined to comment on how the case is likely to play out. In a statement on Sunday, Mark Geragos, the head of Kaepernick’s legal team, said if the NFL “is to remain a meritocracy, then principled and peaceful political protest—which the owners themselves made great theater imitating weeks ago—should not be punished and athletes should not be denied employment based on partisan political provocation by the Executive Branch of our government.”
But the burden of proof from these cases requires more than proving Kaepernick’s statistics are better than some quarterbacks in the league, or citing a consensus among experts that he should be signed. Instead, he will need to prove some sort of coordinated effort between teams, owners and the league to keep him from signing with an organization after he became a free agent on March 3.
“They took special care [in the collective-bargaining agreement] to say you’re not going to win on circumstantial evidence,” Adler said.
In addition, legal experts said, if the evidence shows that each team independently came to a decision that it shouldn’t sign Kaepernick—for whatever reason—then that ultimately could result in a ruling that was no collusion.
Any evidence of collusion could come from evidence Kaepernick’s lawyers obtain during discovery, but they are also likely to point to publicly available comments. Though the grievance names all 32 teams, 10 or so will likely stand out as focal points at the outset because officials or coaches with those teams have previously made public comments regarding Kaepernick or the team’s quarterback situation, according to a person familiar with the matter.
Another person who has spoken repeatedly about Kaepernick is President Trump.
Even before the president’s tweets and statements over the last month blasting NFL players for kneeling during the national anthem the president had spoken out on multiple occasions about Kaepernick’s situation.
During a March rally in Louisville, Trump cited an article saying that “NFL owners don’t want to pick him up because they don’t want to get a nasty tweet from Donald Trump. Do you believe that?”
The day before that rally, Trump was seen with New England Patriots owner Robert Kraft. Jerry Jones, the owner and GM of the Cowboys who has said it is team policy that the players will stand during the anthem, has acknowledged talking with Trump about the national anthem issue.
The grievance alleges “calculated coordination” between the league and the executive branch of the U.S. government, and says Trump has been an “organizing force” in the effort. A White House spokesperson didn’t immediately respond to a request for comment.
Whether those types of comments that are on the record—and whatever turns up in discovery—amount to collusion will be up to the arbitrator, Stephen Burbank, a professor at the University of Pennsylvania Law School. After Burbank rules, any appeal would be heard by a three-person panel.
Should Kaepernick win, the CBA entitles him to damages worth up to three times what the arbitrator determines he lost as a result of the collusion. For example, a determination that he would have been paid $15 million means he could net $45 million.
As all of this unfolds, information may be scarce. According to the collective bargaining agreement, arbitration proceedings are confidential “unless the parties agree otherwise.” Kaepernick’s grievance asks the NFL to waive those requirements, though the league has given no indication it would agree to that.
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