NFL asked fans about Kap concerns, which could aid QB’s collusion case
A POLL conducted by the NFL last year may hold the key to unlocking Colin Kaepernick’s collusion complaint against the league.
A source confirmed to the Daily News that the NFL paid The Glover Park Group to conduct a poll last year that included questions about Kaepernick.
The source independently verified a Yahoo Sports report that the poll specifically asked Americans what they thought about Kaepernick remaining unsigned and whether they thought it was due to his performance as a quarterback or his refusal to stand for the national anthem.
Glover Park Group, which was co-founded by former NFL spokesman Joe Lockhart, also asked fans their opinions on other league issues, including lightning-rod matters like player safety and domestic violence. Kaepernick was the only player named in it, the report said
NFL conducting such a poll could bolster Kaepernick’s case, according to sports law expert and Baruch professor Marc Edelman. According to Edelman, the NFL conducting the poll does not prove collusion but would be a substantial piece to likely get Kaepernick’s attorney over the initial threshold of showing at least some evidence of collusion.
“I believe that this would be sufficient evidence to get over the hurdle because this is more than simply showing a player was skilled but not signed,” Edelman said. “This is showing that the league office, which is run by the 32 NFL teams collectively, pursued the question as to whether a particular player should be on a team. A reasonable finder of fact may find this evidence to indicate collusion, or they may find this evidence not to prove collusion, but irrespective, the mere fact this is out there should get Kaepernick’s attorneys above that initial threshold of showing at least some hard evidence. This will be helpful to them.”
Reached by the Daily News on Thursday, Kaepernick’s lawyer Mark Geragos declined to comment on what such a poll might mean for Kaepernick’s collusion case.
“Unfortunately, for the time being, there’s a protective order, but this is an area that’s just the tip of the proverbial iceberg,” Geragos told The News.
Geragos was less reserved when asked his opinion on the new NFL rule requiring all players on the field to stand for the anthem.
“If I were (NFL leadership), I would be careful before I spike the football,” he said.
“I think it’s uniform, based on the players I’ve talked to. The players are outraged. To quote Steve Kerr, it’s ‘idiotic’ what the NFL is doing,” he said. “I can tell you, based on my experience, you’ve got a bunch of old, completely out of touch, addled owners who have no idea what they’re doing,” he said.
In order for Kaepernick, and former 49ers safety Eric Reid, to prove they’ve been railroaded out of the NFL by teams that have decided their politics are bad for business, they would need to produce hard evidence that at least two teams, in tandem, made the decision to not hire them. The poll does not do that, but it does add legitimacy to the collusion complaints.
The poll asked fans if Kaepernick should have been signed, if they think his unemployment was tied to his kneeling for the national anthem and other questions that dealt with potential punishment for protesting players, according to Yahoo Sports.
The poll reportedly showed racial and political divisions, with older, conservative fans in favor of keeping Kaepernick out of the league and disciplining players who demonstrated during the anthem, while younger, more liberal respondents supported the QB and the movement he started two years ago to protest police brutality and racial injustice.
According to the NFL’s collective bargaining agreement, teams may not make decisions about signing players with other teams. Edelman said this specific clause was created to make sure each side — teams and players — are making signing decisions independently.
“Which means that the league office should be playing no role whatsoever,” Edelman said.
“The mere fact that the question is even being posed by the league to fans as to whether a particular player should be on a team seems to unquestionably show at least some discussion among the teams who collectively compose up the NFL about the fate of a particular player. In my opinion, it is absolutely not conclusive of collusion, but it is by far and away the most probative piece of evidence that has come to the public light so far.”
In addition to the NFL, Kaepernick’s lawyers have reportedly also focused their attention on the influence President Trump’s rhetoric about anthem demonstrations has had on the situation. While Trump is not an NFL owner (though he’s always wanted a team), he could help to prove what is known as a “hub-and-spoke” conspiracy under antitrust law in which teams collude with the help of a third party. By definition, Trump, who has railed against players who do not stand for the national anthem (most recently saying Thursday morning maybe they should leave the country) could be viewed as an influential hub.
In addition, Trump’s threatening tweets and statements could also be used by Kaepernick’s lawyers.
For example, in a 2017 tweet, Trump threatened to use a federal tax law to punish the NFL for the protests when he wrote “Why is the NFL getting massive tax breaks while at the same time disrespecting our Anthem, Flag and Country? Change tax law!”
This is no different than taking away someone’s freedom of speech, according to Edelman.
“By alleging Trump’s statement and tweets threatening financial harm to the NFL if the league allows players to kneel amounted to the activity of the United States, as a state actor, seeking to inhibit free speech of individuals by threatening their employers and threatening blacklists,” Edelman said. “There is a limited line of case law that indicated when a state actor seeks to compel third parties to refuse to do business with someone based on political speech. That would violate the First Amendment of the U.S. Constitution.”