Good afternoon. It’s Tuesday, Feb. 26, 2019, and welcome to this special edition of “The Labor Beat,” where we’ll be breaking down Colin Kaepernick’s collusion case against the NFL. Send tips, exclusives, or suggestions to [email protected]. Follow us on Twitter at @grandstcentral and @al_neal_stl.
It happened quickly and without a sound.
After months of waiting for an earth-shattering, arbitration ruling—one which would alter National Football League (NFL)-NFL Players Association (NFLPA) labor relations for years to come, Colin Kaepernick’s collusion grievance against the league ended with a joint press release, Feb. 15 at 1:01 p.m.
“For the past several months, counsel for Mr. Kaepernick and Mr. Reid have engaged in an ongoing dialogue with representatives of the NFL. As a result of those discussions, the parties have decided to resolve the pending grievances. The resolution of this matter is subject to a confidentiality agreement so there will be no further comment by any party.”
In brief, Kaepernick and Eric Reid reached a private settlement with the league and have withdrawn their grievances. The NFLPA, which wasn’t directly involved in the collusion grievance, also released a statement supporting the resolution and congratulated Reid on his new, three-year deal with the Carolina Panthers.
That was it. There were no clear-cut winners or losers nor an advantage gained by either side as the clock winds down on the current collective bargaining agreement (CBA). And the public is left to ponder and speculate about what occurred behind closed doors.
Why the settlement?
There a few possible reasons for the settlement. The first being Kaepernick was able to show cause and enough evidence to make the NFL nervous. Proving collusion is difficult to begin with, and the arbitrator would have to see the “clear preponderance of evidence” as defined by the CBA. Labor arbitrators are limited upon what they can and cannot rule. In this case, the scope of authority (CBA pg. 120) is limited to the disputes specifically listed in the CBA. Apparently, the preponderance of evidence was clear enough that the case was scheduled sometime in February for a final hearing.
Second, with the possibility of the NFL losing, the league settled in order to avoid a public relations nightmare. The arbitrator’s written ruling would make public some if not all of the team owners’ depositions taken by Kaepernick’s legal team. Those statements could further show bias, racism, and racial insensitivity by team officials.
Third, the negative impact on labor relations and the small possibility the NFLPA would void the entire CBA if the NFL was found guilty of collusion might have convinced the NFL to settle.
Section 16. Termination: The NFLPA shall have the right to terminate this Agreement, under the following circumstances:
(a) Where there has been a finding or findings of one or more instances of a violation of Section 1 of this Article with respect to any one NFL season which, either individually or in total, involved five or more Clubs and caused injury to 20 or more players; or
(b) Where there has been a finding or findings of one or more instances of a violation of Section 1 of this Article with respect to any two consecutive NFL seasons which, either individually or in total, involved seven or more Clubs and caused injury to 28 or more players. For purposes of this Subsection 16(b), a player found to have been injured by a violation of Section 1 of this Article in each of two consecutive seasons shall be counted as an additional player injured by such a violation for each such NFL season; or
(c) Where, in a proceeding brought by the NFLPA, it is shown by clear and convincing evidence that 14 or more Clubs have engaged in a violation or violations of Section 1 of this Article causing injury to one or more NFL players.
(d) In order to terminate this Agreement: (i) The proceeding must be brought by the NFLPA;
(ii) The NFL and the System Arbitrator must be informed at the outset of any such proceeding that the NFLPA is proceeding under this Section for the purpose of establishing its entitlement to terminate this Agreement; and
(iii) The System Arbitrator must find that the Clubs engaged in willful collusion with the intent of restraining competition among teams for players.
Finally, with a settlement, Kaepernick is now better positioned to sign with a team and return to the gridiron.
Of course, each side will spin a victory narrative. And critics from all sides of the political spectrum will likely have much to say—they usually do.
So, after two years, thousands of documents and recorded depositions, and nationwide protests let’s go back to the beginning and breakdown the entire grievance case.
“I AM NOT GOING TO STAND UP TO SHOW PRIDE IN A FLAG FOR A COUNTRY THAT OPPRESSES BLACK PEOPLE AND PEOPLE OF COLOR…”
August 14 and 20, 2016: During most of the San Francisco 49ers’ preseason schedule, Kaepernick protested racial injustices during the national anthem. Kaepernick, out of uniform, sat as the national anthem played during the first two games—confirmed by Mark Garafolo of NFL Network, but the story didn’t gain further media attention.
August 28, 2016: There was no dramatic unveiling of Kaepernick’s protest. It was a photo tweeted by Jennifer Lee Chan of Niners Nation, related to a team formation, that showed Kaepernick, in uniform this time, sitting during the anthem. Kaepernick confirmed his protest to the media, as it began to gain national attention.
“I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color,” Kaepernick told NFL Media after the game. “To me, this is bigger than football, and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder.”
The league released a statement, too, saying “players are encouraged but not required to stand during the national anthem.”
Side Note: Prior to 2009 players were not required to be on the sidelines during the national anthem, but always had the option. After 2009 players stood on the sidelines during prime-time games, as was done during Sunday afternoon games. In 2015, it was confirmed by USA Today that the Department of Defense (DOD) paid the NFL $6.8 million for patriotic national anthem ceremonies honoring the armed forces between 2011 and 2015, but nothing was reported during 2009 that can confirm DOD payments to the league began then.
September 1, 2016: Kaepernick takes a knee for the first time and is joined by teammate Eric Reid. From there the “take-a-knee” protest movement spread league-wide and began to shift the public narrative around Black Lives Matter, racism, and police brutality against African-Americans.
Throughout the entire 2016 season, Kaepernick’s nonviolent protest drew praise and hate. He played 12 games for the 49ers, struggling a bit during the team’s final 11 games—16 touchdown passes, four interceptions, with a QB rating of 90.7, with his QB rating for 2016 ranking 23rd amongst starting quarterbacks.
While the national conversation continued, it wasn’t until March 3, 2017 that the protest movement gained legal meaning. With Kaepernick opting out of his contract with the 49ers and becoming a free agent, teams would be free to hire him. And there were plenty in dire need of a starting quarterback. But the offers never came.
The months dragged by during the 2017 season. The protests continued, and Kaepernick remained unemployed.
March 22, 2017: Donald Trump comments on the protests during the national anthem, becoming a third-party player in the matter.
“Your San Francisco quarterback, I’m sure nobody ever heard of him,” Trump said. “…There was an article today, it’s reported, that NFL owners don’t want to pick him up because they don’t want to get a nasty tweet from Donald Trump. Can you believe that?”
September 23, 2017: Trump threw himself further into the controversy surrounding the protests during the national anthem with a speech in Alabama, saying, “Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a bitch off the field right now. Out! He’s fired. He’s fired!’?”
September 24, 2017: An estimated 204 players took a knee in response to Trump’s comments.
October 16, 2017: Kaepernick files a grievance against the NFL, arguing team owners and the league colluded to keep him out of the league as retaliation for his protests during the national anthem.
The Issue: Did the NFL and owners work together to keep Kaepernick unemployed in violation of the NFL-NFLPA Collective Bargaining Agreement?
Under the current CBA, collusion is strictly prohibited but makes certain exceptions to allow teams the “right not to negotiate or contract any particular player” (pg. 122). If collusion is believed and a grievance filed, the burden of proof falls on the union or individual player. They are responsible for collecting and presenting evidence to the arbitrator. The league is responsible for disproving their argument.
- “The NFL and all 32 NFL Teams are in violation of the CBA’s anti-collusion provisions.”
- The NFL and 32 teams have “engaged in express or implied collusion by prohibiting Mr. Kaepernick from trying out with any team and prohibiting Mr. Kaepernick from being Employed by any team despite his qualifications.”
- The NFL and 32 teams have “undertaken said collusive conduct in retaliation for Mr. Kaepernick’s invocation of his rights under the First Amendment and his leadership in bringing attention to racial inequality and social justice.”
The argument’s backbone rests on the belief that team owners and the league worked to exclude Kaepernick because they feared Trump’s backlash—who took the opportunity to flex, displaying his power over unruly, Black men and billionaire, NFL owners with more money than him.
Transcripts of team owner depositions obtained by the Wall Street Journal, showed Dallas Cowboys’ owner Jerry Jones saying the president personally told him: “This is a very winning, strong issue for me,” Trump reportedly added on the call. “Tell everybody, you can’t win this one. This one lifts me.”
Trump’s involvement was another link in the collusion chain. Kaepernick’s legal team would need to show—through texts, emails, phone calls, etc.—that owners worked together to keep him off the field because of Trump’s statements. Trump doesn’t fall under the CBA’s jurisdiction, and even if a team and Trump agreed not to hire Kaepernick, it wouldn’t prove collusion because it happened with someone outside the CBA.
The NFL’s Summary Judgement Request and Denial
The NFL requested a summary judgment from arbitrator Stephen Burbank, which asked for immediate dismissal of the case. That request was denied, as Kaepernick’s legal team offered enough evidence to convince Burbank that the league and owners might have colluded to keep him off the field.
“On August 28, 2018, the System Arbitrator denied the NFL’s request that he dismiss Colin Kaepernick’s complaint alleging that his inability to secure a player contract since becoming a free agent in March 2017 has been due to an agreement among team owners and the NFL that violates Article 17, Section 1 of the collective bargaining agreement between the NFL and the NFLPA (union),” read Burbank’s written decision.
This was a shock to the league, as it made the possibility of losing very real. Unfortunately, we’ll never know exactly what evidence was presented to the arbitrator that led to this decision.
Why It Matters
Beyond the sensational headlines and the incoherent stream of Trump tweets, Kaepernick’s case matters because it highlights issues we grapple with daily: racism and prejudice. Not to mention its meteoric rise following the election of Donald Trump-courtesy of a fading generation delivering its final blows against a changing socioeconomic landscape.
It also shows how quick First Amendment protections disappear inside the workplace. Private sector employees have no First Amendment rights on the job and must rely on outdated federal labor laws that protect direct, collective, and political action in the workplace, and the National Labor Relations Board (NLRB)—now highly politicized—for enforcement of those protections.
Had the NFL not pushed through their national anthem policy, making the protest about a unilateral change in working conditions, the NFLPA would have no grounds to file a class-action grievance against the league—adding merit to Kaepernick’s case.
One thing is certain: whether Kaepernick is employed by the NFL before the 2020 United States Presidential Election will predicate what we can expect in that election.