Can Kaepernick Prove Collusion by the NFL?
Colin Kaepernick has filed a grievance against the NFL for colluding to prevent him from being hired by any team. This collusion grievance allegedly stems from the protests that Kaepernick initiated during his last season with the 49ers. Despite becoming a free agent with an enviable record at the end of the 2016-2017season, he has yet to be recruited by any NFL teams and believes it is because they are actively avoiding hiring him.
What Is Collusion?
Collusion is the idea that parties of two or more illegally worked together to make something happen to their benefit and at the exclusion of others. Collusion, by definition, implies secrecy and conspiracy. But it does not mean that every team in the NFL sat down and decided to blacklist Kaepernick. Here, collusion means that at least two teams, or perhaps an owner and the league, worked together to create an environment hostile to Kaepernick being hired again.
Kaepernick and his legal team argue that: he is qualified and has the record to be hired as a starting, or at least, backup QB; less qualified QBs have been hired or are starting; and, the motives against him are political, including pressure on owners from the President.
While the burden to prove collusion is primarily on Kaepernick, the NFL will have to defend the argument that it is purely a coincidence that no team has hired him, and that Mark Sanchez is a really amazing quarterback.
The Protest Controversy
The protests that are believed to be behind the blacklisting centered on numerous incidents of police brutality directed at African-Americans. Kaepernick decided to kneel during the national anthem in order to draw attention to those incidents. However, some people viewed the protest during the anthem as an anti-American act, and saw it as disrespectful, especially to the flag and to the military, as well as simply being a distraction. This has had the effect of creating a national conversation, but that discussion has not just been focused on police shootings of African-Americans, if at all, but around protests, what protests should look like, when they should be held and if football players should participate in any way. While Kaepernick has yet to participate in any games this season, his protest continues through other players across the NFL and has provoked the condemnation of the President and Vice President, making the controversy even more charged.
When Colin Kaepernick officially opted out of his contract with the 49ers in spring of 2017, he became a 29 (now 30) year old free agent. He played 12 games in his last season and his record included 2,241 passing yards, 16 passing touchdowns, two rushing touchdowns, 468 rushing yards and four interceptions. In a previous season, he’s taken his team to the Super Bowl. His record is better than several of the starting quarterbacks currently playing and better than several quarterbacks who were hired, which helps support the argument that NFL owners are simply refusing to consider him. In fact, when Kaepernick worked out with Seattle earlier in the year, Coach Pete Carroll referred to him as a “starter in this league”.
The Collective Bargaining Agreement
Another highly significant issue in this complaint involves the Collective Bargaining Agreement.
Players in the NFL work for the owners under a contract known as the Collective Bargaining Agreement. This means that Kaepernick’s grievance will not be heard in court like a typical lawsuit but will instead be heard by an administrator referred to as the NFL Special Master, named Steven Burbank. Burbank is an attorney and legal professor at Penn State; an expert in contracts, he deciphers and makes determinations based on the CBA. He was appointed by a federal court 8 years ago.
Because collusion is a violation of the CBA, if Kaepernick can successfully make the case that he was blackballed, it could effectively terminate the collective bargaining agreement, forcing the league to develop a new contractual relationship with its players.
So, on the surface, this legal move seems to be about Kaepernick’s employment status, but it may also be a move to affect how owners and players interact in the league, and can specifically affect how all players are treated. However, the current CBA is contractually in place until 2020, and some argue without the support of the NFL Players’ Association, it is unlikely, even if Kaepernick wins his case, that the entire contract would be voided. While the NFLPA supports Kaepernick, they were not part of this move to file a complaint and bargaining for a new contract is not only a monumental task but one that comes with the risk of lock-out.
The NFL Special Master is expected to collect statements and call for a hearing on the matter in the near future.
ABOUT THE AUTHOR: Colin McCallin
As a former District Attorney, Colin has over 6 years of litigation experience at the 18th Judicial District Attorney’s Office. Since that time he has exclusively focused on criminal defense. Colin is a member of the Colorado Criminal Defense Bar as well as the National College of DUI Defense. Colin has also provided expert legal analysis for 9News in Denver.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.