On Thursday, Colin Kaepernick’s attorney announced on Twitter that his client’s collusion grievance against the NFL would go forward to a full hearing, after an arbitrator rejected the league’s request for a summary dismissal.
The ruling, made Tuesday by arbitrator Stephen Burbank, could be devastating for a league that has been embroiled in political controversy since the 2016 preseason, when Kaepernick started protesting racial discrimination and police brutality, first by sitting and then by kneeling during the national anthem. A number of players have joined this protest movement since, and the NFL has struggled to respond.
Those challenges could now prove even more difficult. If Kaepernick wins his upcoming grievance hearing and that victory is upheld on appeal, it would be a landmark decision that would open the door for the NFL Players Association to seek to invalidate the league’s collective-bargaining agreement, two years before it is set to expire.
According to the terms of that agreement, Kaepernick had to prove that the evidence collected in the preliminary phase of the case “was sufficient to raise a genuine issue of material fact” over whether there could have been an express or implied agreement between teams to keep him out of the league. That evidentiary bar also required that Kaepernick provide possible proof of being shut out beyond a demonstration of his own skills as a player.
In essence, that means that preliminary discovery—a pre-hearing collection of available information about the dispute—yielded sufficient facts that a reasonable jury could potentially find that teams, and perhaps the league, had an implied or express agreement to blackball Kaepernick. His attorneys are arguing that a joint decision to keep him out was in part a response to pressure by President Donald Trump, who has vocally criticized the anthem protests and said any player who kneels is a “son of a bitch.”
In May, the Wall Street Journal reported that Dallas Cowboys owner Jerry Jones said in a sworn deposition that Trump had asked him to convey to owners that the president would continue to attack the league as long as the protests continued. “This is a very winning, strong issue for me,” Trump said, according to Jones. “Tell everybody, you can’t win this one. This one lifts me.” The New York Times reported earlier this year on a closed-door meeting between players and owners in which owners appeared terrified of Trump. If Kaepernick and his lawyers can demonstrate that it is substantially more likely than not that owners were seeking jointly to appease Trump at any cost, including by keeping Kaepernick out of the NFL, then the former 49ers quarterback could win his case. Earlier this year, the NFL attempted to ban player protests during the national anthem in potential contravention of the collective-bargaining agreement. That policy, though, was put on hold after the NFL Players Association filed a grievance against the league over it, and details of team policies surrounding punishments for protesting players leaked to press. On Thursday, the Washington Post reported that the standstill agreement would likely remain in place when the regular season opens next week, and that little progress had been made in negotiations over a final policy.
The next step for Kaepernick will be a trial-like hearing in front of Burbank that will include the possibility to call live witnesses and subpoena additional documents. The arbitrator will then rule on the case, subject to de novo appeal.
The New York Times reported on Thursday that a hearing would most likely occur by the end of the year. (The NFL declined to comment to the Times.)
Safety Eric Reid, who joined Kaepernick’s initial protest, has filed a similar grievance after he went unsigned during the early period of this year’s free agency. Reid was one of the best available players at his position this offseason, which saw a marked depression in the market for safeties coinciding with Reid’s failure to sign. After signing with the Arizona Cardinals, safety Tre Boston earlier this month accused teams of devaluing “the whole market” in order to cover-up their blackballing of Reid.
Boston’s allegation is significant, because a provision of the CBA allows for the NFLPA to file a grievance seeking to terminate the entire collective bargaining agreement if 14 or more teams collude against a player willfully and “with the intent of restraining competition among teams for players.” Kaepernick’s grievance claim is going forward against all 32 teams and the league itself. It was filed by the player and not by the NFLPA, though, and so it wouldn’t seem to currently qualify for potentially nullifying the CBA. The players association, though, could hypothetically attempt to sign on to the Kaepernick case before the hearing—or sign on to Reid’s case—and notify the league that it is seeking to nullify the CBA. That provision of the contract, however, also requires that the NFLPA notify the league at the “outset of any such proceeding” (that the players are seeking to terminate the CBA). Kaepernick’s proceeding was filed in October 2017 without the NFLPA, while Reid’s proceeding was filed in May without the NFLPA. It’s unclear what might happen if the NFLPA attempted to join one of these cases and nullify the contract. (A representative for the NFLPA declined to comment on Thursday.)
If Kaepernick proves his case, though, other players could then argue that the league had intentionally colluded to “restrain competition” for their own services, potentially with the NFLPA on board the grievance and the collective-bargaining agreement in the balance. Boston, for instance, has claimed publicly that his $1.5 million, one-year deal undervalues him by $5 million. (In the previous two seasons, top free-agent safeties were commanding five-year, $50-$60 million contracts.) And there is ample evidence to suggest that deals for safeties have been depressed by a significant degree this year, with little explanation.
Even the possibility that the NFLPA could sue to terminate the collective bargaining agreement early on behalf of these safeties—or potentially other protesting players—would seem to give players enormous leverage in ongoing discussions over what to do about any possible new anthem policy. It will be interesting to see how they utilize that power.