When a worker has a grievance with their employer, they can file a complaint. But what happens when that complaint could impact the livelihoods of those playing and managing one of America’s most beloved sports?
Former San Francisco 49ers quarterback Colin Kaepernick began his protests against police violence and racial inequality two years ago, first sitting and later kneeling during the national anthem. The act sparked a years-long debate about activism on the football field, as players throughout the league joined him by kneeling, raising fists, and locking arms.
Along with some fans, the protests drew the ire of President Donald Trump, whose comments turned the protests into a referendum on matters of race and patriotism.
As Trump’s criticism mounted both on the campaign trail and later from the White House, Kaepernick left the 49ers and became an unsigned free agent, last appearing in an NFL game in January 2017. Nine months later, he filed an official grievance against the NFL, alleging that the league’s teams colluded to keep him off the field as a result of his protest. In the year since, some of the NFL’s most powerful owners have given depositions in the case.
As a new NFL season begins, with the league and its players deadlocked over a new anthem rule intended to end the kneeling protests, and with the president still tweeting about them, Kaepernick’s image and the image of his protest continue to loom large over the league. And as the wave of praise — and backlash — to his new Nike campaign shows, the athlete has become a powerful symbol in American culture.
But Kaepernick’s influence isn’t limited to culture or politics. Due to his collusion grievance, which is still working its way through the NFL’s arbitration system, his presence also hovers over the NFL’s labor relations with its players. At the end of August, Kaepernick lawyer Mark Geragos announced that an arbitrator denied the NFL’s efforts to end the collusion grievance in its preliminary stage, meaning that the case will move to a full hearing in the near future.
The hearing will give Kaepernick the chance to officially make the case that he was blackballed by the NFL. That finding would add to ongoing discussions of the ways the league’s handling of the protests isn’t just about politics or America’s culture wars, but also about how the NFL treats its players, a relationship that has always been fraught due to the racial politics of the NFL’s predominantly white group of executives and team owners making decisions that affect a predominantly black group of athletes. And a ruling in Kaepernick’s favor could have a powerful impact on a league already struggling to balance several hot-button issues at once.
Kaepernick says the NFL and its teams colluded to keep him off the field, which the league denies
Kaepernick became a free agent after opting out of his 49ers contract in March 2017, allowing him to sign with any team. He spoke to the Seattle Seahawks and Baltimore Ravens but wasn’t offered a contract with either. A string of other quarterbacks — some with statistically weaker performances than Kaepernick — found work in the NFL. This prompted observers to question whether Kaepernick was out of a job because of his protests.
Kaepernick formally demanded that the league answer that question in October 2017 when he filed his grievance, alleging that the NFL’s teams had colluded against him. In doing so, he asked the NFL’s arbitrator to determine if two or more teams, or NFL leadership in partnership with at least one team, worked together to keep him off the field due to his protest. Due to the rules outlined in the NFL Players Association’s collective bargaining agreement with the league, a ruling in Kaepernick’s favor does not entitle him to a spot on a team, but he would receive a financial award amounting to roughly double what he would have made if he had stayed in the league.
”Principled and peaceful protest … should not be punished,” Geragos, Kaepernick’s attorney, said in a statement last year. “Athletes should not be denied employment based on partisan political provocation by the Executive Branch of our government.”
The NFL denies that this happened. “Teams make decisions (based) on what’s in the best interest of their team … and they make those decisions individually,” NFL Commissioner Roger Goodell said last summer. In the months since, the league has repeated that argument, saying there was no effort to collude against Kaepernick and that any team’s decision to keep him off the field was a decision made independently.
Some of the NFL’s argument has been challenged in the months since. In May, Yahoo Sports reported that in 2017, NFL executives contracted a poll asking fans if they thought Kaepernick should continue to play in the NFL. This, on its own, isn’t enough to prove a conspiracy to keep Kaepernick off the field, but if the polling data was shared with teams and then influenced teams’ willingness to sign Kaepernick, that could be a problem.
Denver Broncos general manager John Elway, one of several NFL figures deposed in the first stage of Kaepernick’s grievance, also muddied the waters in August when he potentially violated the grievance’s gag order while speaking with reporters. “As I said in my deposition … I don’t know if I’m legally able to say this, but he’s [Kaepernick] had his chance to be here,” Elway said. “He passed it.”
Reporters noted that Elway offered Kaepernick a contract in 2016 but passed on him a year later, after the protests, despite Kaepernick’s improved numbers that season. Elway’s comments suggested that he had been asked about the 2016 offer in the deposition.
Kaepernick cleared the first hurdle in his collusion case — but collusion can be very difficult to prove
It’s helpful to explain exactly how collusion grievances are handled. First, collusion between teams to prevent a player from signing onto a team or playing is a violation of the NFL Players Association’s collective bargaining agreement with the league.
Collusion grievances don’t go to trial, although they do rely on a framework that borrows heavily from that sort of procedure. At a hearing, Kaepernick’s team and the NFL can offer testimony, present evidence, and review footage. All of this will occur behind closed doors, with arbitrator Stephen Burbank, who has worked to resolve disputes between the NFL and the Players Association for years and will have the final say as to whether the NFL colluded against Kaepernick.
This presents an opportunity and a challenge for Kaepernick. Burbank recently determined that Kaepernick had enough evidence to move the case forward, suggesting he thinks there is enough evidence to further investigate the collusion claim, (although some experts, like Charles Grantham of the Center for Sport Management at Seton Hall University, have argued that given the high-profile nature of the case, it was very likely to get a hearing).
Burbank opted not to remove any teams that he thought weren’t involved in collusion from the case, instead allowing the grievance against all 32 teams and the NFL executive leadership to continue. But this does not mean Burbank will find in Kaepernick’s favor once all evidence is presented in the next phase of the process.
In this process, it won’t be enough to argue that Kaepernick — who led the 49ers to two conference championship games and the 2013 Super Bowl, and performed better while kneeling in the 2016-’17 season than the year prior — is statistically a good enough player to play. Kaepernick also can’t argue that a single owner who found his protest too hot to handle proves collusion; if that decision was reached independently, even if it was reached by each of the NFL’s team owners, it fails to meet that standard. Instead, Kaepernick must prove that at least two teams, or the NFL and at least one team, worked together to keep him from playing.
Experts note that it can be hard to find a smoking gun in these sorts of cases. “There’s a host of reasons why a club would individually or independently not offer him a contract,” Matt Mitten, executive director of the National Sports Law Institute at Marquette University Law School, told the New York Times in 2017. “So it will be tough for them to argue that there was a tacit agreement.”
That doesn’t mean it’s impossible. Players in other leagues have won collusion grievances. Perhaps the most notable example of this occurred in the 1980s when players filed grievances against Major League Baseball, arguing that the league had restricted free agents. The arbitrator sided with the players, leading to a $280 million settlement.
But Kaepernick’s collusion grievance is tied up in the owner-oriented nature of the NFL, which affords little power or recourse to its players. But there is one figure who could help Kaepernick make the case that collusion played a role in what could likely be a forced conclusion to his football career.
And that person is President Donald Trump.
NFL owners have said that they wanted to end Trump’s complaints about the protests. That could help Kaepernick’s case.
President Trump has been very transparent about his feelings toward the NFL protests, particularly when it comes to his belief that players protesting racial injustice are disrespecting the symbols of America.
The claim dates back to his time on the campaign trail when he criticized Kaepernick’s protest, saying the player should “find a country that works better for him.” Since then, Trump has only ramped up his rhetoric, notably calling kneeling NFL players “sons of bitches” who should be fired last September. A few weeks after that, Vice President Mike Pence left a football game after 49ers players knelt during the anthem (Trump took credit for Pence’s departure shortly thereafter). In March 2017, after Kaepernick became a free agent, Trump argued that NFL owners were avoiding the quarterback because they didn’t want to get a “nasty tweet” from the president.
Trump has eagerly claimed credit for Kaepernick no longer playing football and suggested that the NFL impose strict penalties on players who continue to protest, but that doesn’t necessarily imply he colluded with the league or team owners. After all, Trump, despite his earlier ambitions, is not an owner of an NFL team.
But as Michael McCann, a law professor and legal analyst for Sports Illustrated, has explained, Trump still could be the catalyst for collusion within the NFL. That case could be made based on various comments from Trump and corresponding statements and policies taken by the league in recent months. And some team owners — especially those who are among Trump’s most prominent supporters and donors — have made it clear that they are deeply worried about the president’s criticisms.
McCann explains:
According to Trump friend and Dallas Cowboys owner Jerry Jones, who also gave a deposition in Kaepernick’s collusion grievance earlier this year, the president has been pretty vocal about the political value of the NFL protests, telling Jones that attacking the protests was a “winning” issue.
In May, the NFL announced a new (and currently suspended) policy that would require players to stand on the field for the anthem or wait off field until it was over. According to ESPN, the desire to pass this rule was so strong that NFL owners did not even wait for a formal vote, instead relying on a hands vote to pass the anthem policy. That move has frustrated the Players Association, which entered talks with NFL execs in July in the hopes of creating a more agreeable anthem policy.
Again, none of this is a smoking gun that proves a collusion case. But taken as a whole, these moments indicate that NFL owners had a strong desire to see an end to the player protests being used as a political weapon, and that appeasing Trump was a catalyst for that desire. The NFL has also worried that the protests are unpopular with fans, a theory that has been backed up in polls, although polling also shows significant racial and partisan divides in opinion over the protests.
That makes it more believable that at least some NFL owners might have colluded to curtail the protests by not signing Kaepernick, someone whom the president has repeatedly singled out when criticizing the NFL.
This could all have an effect that goes much further than Kaepernick
Now that Burbank has ruled that the case can go forward, Kaepernick and the NFL are left with two options: let things continue to a hearing, or settle before that happens. Given Kaepernick’s continued statements about the protests and the NFL’s response to them, it is unlikely that he will take the latter option, even if the league may prefer it to avoid any further bad press.
A Kaepernick victory is by no means guaranteed, and both parties will have the chance to file an appeal after the final ruling. But if Burbank does ultimately rule in Kaepernick’s favor, the case could have a serious impact, on Kaepernick as well as on other NFL players.
First, there’s former 49ers safety Eric Reid, who joined Kaepernick in the kneeling protest and has filed his own grievance against the NFL after he became another unsigned free agent in 2018. As Slate’s Jeremy Stahl notes, other players have argued that Reid’s absence from the market caused teams to drastically undervalue other safeties. If Kaepernick and Reid win their grievances, Stahl argues, other players affected by the market changes may see fit to file grievances against the league.
And if the NFLPA were to join one of those cases, that could potentially create a scenario where the current collective bargaining agreement could be scrapped. Under the current agreement, if the NFLPA is part of a grievance where 14 teams are found to have colluded, then the NFLPA can call for a new agreement. Stahl argues that the prospect of a new bargaining agreement, even if that prospect remains hypothetical for the time being, “would seem to give players enormous leverage in ongoing discussions over what to do about any possible new anthem policy.”
That scenario is a bit less likely, especially since it seems to require that the NFLPA be part of a grievance from the very beginning, something that did not happen in Kaepernick’s or Reid’s cases. But even if Kaepernick’s collusion grievance is settled, or fails to succeed in a future hearing, the quarterback has sparked a tremendous shift that affects the NFL’s public image and has ignited a national dialogue about race, sports, and protest. And that change will be difficult to reverse.
Sourse: vox.com
