Taking of a Knee Leading to Collusion? A Look into Recent Collusion Claim Against the NFL  

By Sara Dalsheim

On April 29, 2011, the San Francisco 49ers drafted Colin Kaepernick as the number thirty-six overall pick in the National Football League (NFL) draft.[1]  That year, Kaepernick made his NFL debut and in 2013 he took the 49ers to the Super Bowl.[2]  Kaepernick’s success continued until November 2015, when his quarterback rating reached an all-time low, placing him on the sidelines.[3]  Kaepernick remained sidelined and unnoticed until August 2016 when he decided to protest by kneeling during the national anthem in response to oppression of people of color and ongoing issues with police brutality.[4]  Kaepernick’s protest sparked national controversy and, in March 2017, Kaepernick officially become a free-agent after he opted out of his contract with the 49ers; however, as of today no NFL team has signed an employment contract with him.[5]

On October 15, 2017, Kaepernick filed a collusion grievance against the NFL, pursuant to Article 17 of the NFL Collective Bargaining Agreement.[6]   Kaepernick is alleging that the team owners colluded to shut him out of the league and are punishing him for kneeling.[7]  Kaepernick will prevail against the NFL if  the system arbitrator determines that the NFL teams came together and agreed not to hire Kaepernick.[8]  However, the likelihood that Kaepernick will prevail will depend on the evidence he is able to gather against the NFL through discovery and requests for documents.[9]  If Kaepernick does win, he stands to collect millions of dollars in lost wages and damages.[10]

As previously noted, Kaepernick will only be successful if he can prove that all thirty-two NFL teams collectively decided to black-ball him.[11]  Kaepernick undoubtedly has the talent for a quarterback job, as his performance statistics are more impressive than nearly all current second-string quarterbacks and some starting quarterbacks.[12]  This season, many NFL quarterbacks have been injured, which normally would be advantageous for someone like Kaepernick; however, he remains unemployed.[13]  The fact that Kaepernick has the talent but no contract could hint that the NFL teams colluded against him.[14]  One could also conclude that Kaepernick’s claim is valid, as many members of the community, including President Trump,  have urged NFL owners to cut players who do not stand for the national anthem.[15]  If NFL owners collectively communicated through Trump about Kaepernick, this would be evidence of collusion.[16]  In the end, if there is hard evidence of NFL owners discussing black-balling Kaepernick in any way, then Kaepernick could potentially prevail against the NFL.[17]

There is a good chance that despite all the points listed, Kapernick will not be successful with his claim.[18]  It is true that Kaepernick is more talented than players who currently have jobs but the agreement between the NFL and the players’ unions specifically states that simply presenting evidence of a player’s skills, and the lack of offers from teams, is not enough to prove collusion.[19]  Kapernick’s superior talent compared to other quarterbacks does not on its own prove anything.[20]  Additionally, in regard to Trump’s remarks, they solely do not advance a collusion claim.[21]

Collusion cases have been victorious before in the sports world.[22]  Major League Baseball (MLB) players have proven that the league and its owners conspired to unlawfully restrict players’ salaries.[23]  These previous victories for athletes against leagues could be beneficial to Kaepernick by possibly alluding that team owners in the sports industry have participated in activities like this in the past.  However, baseball player Barry Bonds also solely filed a collusion claim against the MLB because it was widely believed by the baseball community that the steroids allegations made him too controversial for a team to sign, and he lost the case.[24]  If it is decided that Kaepernick’s claim is similar to Bonds’ then Kaepernick will also not be successful.[25]

Regardless of the outcome, Kaepernick’s claim will have crucial impacts on both employees and businesses.  If the arbitrator in Kaepernick’s case decides that documentations that exhibit the precise colluding language are needed, then employees in all industries may have to exemplify this high burden of proof in their collusion claims.[26]  This would mean that businesses can collude as long as they do so in an inadvertent fashion.  Continuing to allow collusion, like the one allegedly exhibited by the NFL, would be a detrimental result for employees who have unfairly been denied the right to work.  However, if Kaepernick is somehow successful in his claim this could encourage employees who find themselves in a similar situation to seek out proper remedy and perhaps slow down inadvertent colluding actions by businesses.

[1] Bay Area News Group, Colin Kaepernick: Timeline of Quarterback’s 49ers Career, The Mercury News (Aug. 11 2016, 10:48 PM), http://www.mercurynews.com/2016/03/11/colin-kaepernick-timeline-of-quarterbacks-49ers-career/.

[2] Id.

[3] Id.

[4] Mark Sandritter, A Timeline of Colin Kaepernick’s National Anthem Protest and the Athletes Who Joined Him, SB Nation (Sept. 25 2017, 10:28 AM), https://www.sbnation.com/2016/9/11/12869726/colin-kaepernick-national-anthem-protest-seahawks-brandon-marshall-nfl.

[5] Sandritter, supra note 4; see Ahiza Garcia, Colin Kaepernick Files Grievance, Says NFL Owners ‘Punished’ Him for Protesting, CNN Money (Oct. 16 2017, 11:15 AM), http://money.cnn.com/2017/10/15/news/colin-kaepernick-nfl/index.html?iid=EL (explaining that some saw Kaepernick’s protest as disrespecting the troops and the American flag).

[6] Nat’l Football League Collective Bargaining Agreement art. XVII §1 (iii) (2011) (“No Club, its employees or agents shall enter into any agreement, express or implied, with the NFL or any other Club, its employees or agents to restrict or limit individual Club decision-making as whether to offer a Player Contract to a player”).

[7] See Marc Edelman, Explaining Colin Kaepernick’s Collusion Grievance Against the NFL, Forbes (Oct. 15 2017, 8:29 PM), https://www.forbes.com/sites/marcedelman/2017/10/15/explaining-colin-kaepernicks-collusion-grievance-against-the-nfl/#5412e97d206c (“The term ‘collusion’ typically means a secret or illegal agreement”).

[8] See Chris Isidore, How Much Could Colin Kaepernick Win in His Collusion Case Against the NFL?, CNN Money (Oct. 17 2017, 4:45 PM), http://money.cnn.com/2017/10/17/news/colin-kaepernick-collusion/index.html (explaining that Kaepernick will not win if it is determined that teams decided independently that Kaepernick is too controversial to sign, without communicating with other teams about it).

[9] See Edelman, supra note 6 (stating that Kaepernick’s lawyers will likely seek access to text messages of team owners and their executives); Nat’l Football League Collective Bargaining Agreement art. XVII §1 (iii) (2011) (“The complaining party shall bear the burden of demonstrating by a clear preponderance of the evidence that (1) the challenged conduct was or is in violation of Section 1 of this Article and (2) caused any economic injury to such player(s)”).

[10] Isidore, supra note 8.

[11] Id.

[12] Michael McCann, Colin Kaepernick’s Collusion Claim: Does He Have a Case?, Sports Illustrated (Oct. 15 2017), https://www.si.com/nfl/2017/10/15/colin-kaepernick-collusion-lawsuit-against-nfl.

[13] McCann, supra note 12; see also Michael Hilzik, Colin Kaepernick Certainly Seems to Be the Victim of Collusion. But Can He Prove It?, Los Angeles Times (Oct. 16 2017, 2:25 PM), http://www.latimes.com/business/hiltzik/la-fi-hiltzik-kaepernick-collude-20171016-story.html (using the injuries of quarterbacks like Marcus Mariota and Aaron Rodgers as examples of spots that Kaepernick undoubtedly has the skills for).

[14] Hilzik, supra note 13.

[15] See McCann, supra note 12 (illustrating how Trump has signaled to the public that he prefers that teams not sign free-agents who kneel during the national anthem).

[16] Id.

[17] See Isidore, supra note 8 (explaining that it will be helpful for the claim if Kaepernick’s lawyers find emails between clubs, or between clubs and the league office, that discuss signing Kaepernick).

[18] McCann, supra note 12.

[19] Isidore, supra note 8.

[20] McCann, supra note 12.

[21] Id.

[22] Id. (citing the MLB collusion claims).

[23] See id. (“In the 1980s, [MLB] owners were shown to have reached a “gentleman’s agreement” to not bid for each other teams’ free agents—a clear violation of baseball’s collective bargaining agreement. Players learned of such plots through their agents, who were able to gain statements from baseball officials that in turn proved collusion”).

[24] See Id. (stating that the arbitrator in the Bonds case concluded that he failed to meet his burden of proof in establishing his lack of an offer was anything more than the teams engaging in consciously similar behavior).

[25] Id.

[26] See Erin Johansson, Collective Bargaining 101, Jobs With Justice (Mar. 3 2017) http://www.jwj.org/collective-bargaining-101 (noting that collective bargaining between an employer and a group of employees results in a unique collective bargaining agreement, which is a legally binding agreement that lays out the policies agreed to by management and employees).

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