Kaepernick Files Grievance Against the NFL

The news came out yesterday, initially from Bleacher Report’s Mike Freeman, that Colin Kaepernick has filed a grievance against the NFL claiming collusion to keep him out of the NFL.  Mike Florio of PFT took it a step further and indicated that Kaepernick’s end game is to invalidate the CBA. Since we talk about things like this on OTC I thought it would be worth diving into the CBA and adding my two cents on the topic.

As with anything pertaining to such legal issues I always want to start out by saying that these are nothing more than my interpretations of the CBA. There are often gray areas when it comes to these things and I could be wrong but Ill do my best to present the relevant areas and we can always amend things later on if more information comes out.

The first part of this is the collusion aspect. The area to reference as it pertains to the general claim of collusion is Article 17, Section 1, Prohibited Conduct. The areas that would pertain to Kaepernick are as follows:

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 follows:

(i)          whether to negotiate or not to negotiate with any player;

(ii) whether to offer or not to offer a Player Contract to any player;

 

Thus far the evidence for collusion has been “common sense” evidence. Kaepernick plays a highly desirable position in the NFL.   He has been the quarterback of a Super Bowl team. He has been one of the top 35 quarterbacks in the NFL. He doesn’t have an extensive injury history. He is far superior to many low level backups in the NFL. His skills are, at the least, on par with players like Ryan Fitzpatrick, Matt Moore, and others who are higher paid backups. There is no logical reason in todays NFL why a player like Kaepernick does not have a job besides something else.

However the CBA more or less says that the above evidence is generally worthless.  From Section 6 on the burden of proof.

The failure by a Club or Clubs…to negotiate, make offers, or sign contracts for the playing services of such players or Unrestricted Free Agents, shall not, by itself or in combination only with evidence about the playing skills of the player(s) not receiving any such offer or contract, satisfy the burden of proof set forth in Section 1 above. However, any of the types of evidence described in the preceding sentence may support a finding of a violation of Section 1 of this Article, but only in combination with other evidence which, by itself or in combination with such evidence, indicates that the challenged conduct was in violation of Section 1 of this Article. Nothing in this Agreement shall preclude the NFL or its Clubs from arguing that any evidence is insufficient to satisfy the burden of proof set forth in Section 5 above. Nothing in this Agreement shall preclude the NFLPA or any player from arguing that any evidence is sufficient to satisfy the burden of proof set forth in Section 5 above, except as set forth above. Section 7.

For the most part I read that to mean that the above common sense argument can potentially support Kaepernick’s case but cant do much beyond that. So they need some type of evidence that shows that a shows people employed in the NFL actually got together and decided that they would not employ Kaepernick for whatever reasons.

Now what if Kaepernick were to sign with a team today?  Would that mean the end of this case?  Probably not. This isn’t about proving 32 clubs colluded against him. If it was it would likely be over since he technically opted out of his contract with the 49ers (plus they employed him last season with no issues) and the Seahawks did bring him in for a visit. Going back to Section 1

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

I read this to simply mean collusion by two teams is enough to justify him winning a case and that by teams it means anyone with decision making authority in an organization.

The grievance would be heard by an Arbitrator and he or she will have the right to determine what is and is not a reasonable request for things to be turned over by the NFL to Kaepernick for the sake of the case. If there is something specific that they know of I would imagine that they would order the NFL owners to comply. If it’s just a fishing expedition for documents from 32 teams regarding internal memos and documents on all free agents I would think it wouldn’t go very far. So it is a pretty big uphill battle unless there is something beyond “it doesn’t make sense why he isn’t in the NFL”, but there is at least a chance to find something between a few individuals.

The part about terminating the CBA is pretty far fetched. This is also pretty explicit in the CBA as it pertains to termination.

The NFLPA shall have the right to terminate this Agreement, under the following circumstances:

 

(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.

 

You don’t need to read any further than “brought by the NFLPA” to say that this case by itself is not going to lead to termination of the agreement. The NFLPA has already said that they did not file this so this is not going to meet any standard by which the players could terminate the CBA unless the union changed course, took over the filing, and informed the NFL that they are looking to terminate the agreement.  Furthermore the proof in this case is 14 teams working against one player.

Now there are other provisions in the CBA that perhaps could come into play. If Kaepernick’s case somehow uncovered that multiple players have not been tendered offers because they refused to stand for the anthem that opens the possibility of the NFLPA terminating the agreement without having to be involved with the proceeding. I don’t believe that is what Kaepernick was intending based on the statements released by his lawyer, but it could be a byproduct of it. That said the individual suit is not going to open the CBA up to termination based on how I read that.

Questions about this article? Reach Jason Fitzgerald on Twitter at @jason_otc