San Francisco Chronicle
Kaepernick collusion claim hard to prove
A grievance filed by former 49ers quarterback Colin Kaepernick says his inability to find work, despite six solid seasons in the National Football League, is because of collusion against him by NFL owners — with President Trump’s encouragement — for kneeling during the national anthem to protest police violence against African Americans.
When a skilled professional athlete is suddenly and persistently unemployed while his former team flounders and rivals make do with less-accomplished reserves, blaming his status on a collective freeze-out does not seem farfetched. But in the legal forum that will judge Kaepernick’s complaint, it can be extremely difficult to prove. Just ask Barry Bonds. After his last season with the Giants in 2007, the year he broke Hank Aaron’s career home run record of 755 on his way to final total of 762, Bonds went unsigned for 2008. He couldn’t get a taker even when he offered to play for the Ma-
jor League Baseball minimum of $500,000, one-32nd of his previous salary. At the time, he was facing a federal indictment on charges of lying to a federal grand jury about steroid use, charges that eventually led to an obstruction-ofjustice conviction that was overturned on appeal.
Bonds’ claim, filed in 2009, that MLB owners had colluded against him, was not decided until 2015, when an arbitrator rejected it. The ruling has not been made public, but legal analysts say the logical explanation is that Bonds never found evidence that any team owner had spoken with another about keeping him from playing in the majors.
Kaepernick, like Bonds, “will have to show some kind of communication, some kind of meeting” to prove collusion, said William Gould, a Stanford law professor, who is chairman of the California Agricultural Labor Relations Board and former chairman of the National Labor Relations Board.
Collusion might be inferred if Kaepernick’s lawyers could show that 29 or 30 of the 32 NFL teams had turned him away, and that there was a “common thread” to their actions, said Gould, who has written extensively on sports law. But even such a showing wouldn’t be enough to prove the former quarterback’s case, said Marc Edelman, a law professor at the City University of New York who specializes in sports law.
Kaepernick “needs to find an agreement between at least two of them, not just 32 NFL teams making separate decisions not to sign Kaepernick based on dislike of his behavior,” Edelman said.
A rare example of a successful sports collusion case came in 1988, when an arbitrator found that MLB team owners had collaborated in shunning free agents after the 1985 season to reduce salaries. The ruling allowed a number of players to regain free-agent status and sign better contracts with different teams.
Kaepernick’s grievance, filed Sunday by attorney Mark Geragos, sketched Kaepernick’s record of success with the 49ers, where he became the starting quarterback in 2012, his second season, and led the team to its first Super Bowl appearance in nearly two decades. In 2016, his final season, he passed for 16 touchdowns and had just four interceptions.
In light of his record, age and health, Geragos said, Kaepernick was “an ideal candidate — and, in fact, the bestqualified candidate — to fill the vacant starting quarterback positions on many NFL teams” when he became a free agent in March.
Geragos said a number of head coaches and general managers said at first that they wanted to sign Kaepernick, “only to mysteriously go silent with no explanation,” while bringing lesser quarterbacks out of retirement to fill vacancies on their rosters.
Then on Sept. 22, Geragos noted, Trump, speaking at a campaign rally in Alabama, told NFL owners to fire any “son of a bitch” who knelt during the anthem, and followed up with a series of tweets that denounced the protesting players. Since then, Geragos said, various NFL owners “have been quoted describing their communications with President Trump, who has been an organizing force in the collusion” against Kaepernick and other dissident players.
Team owners have blacklisted Kaepernick in retaliation for “his leadership in bringing attention to racial inequality and social injustice,” Geragos said. This conduct, he asserted, “has been manifest in NFL team owner communications with each other, with the executive branch of the United States government, on social media, and through efforts announced by NFL Commissioner (Roger) Goodell,” who last week proposed a rule requiring players to stand during the national anthem.
Geragos did not cite any evidence of owners’ communications with each other. Edelman said the lawyer would have to seek records of emails, text messages and any other communications among team owners and managerial employees to try to make his case.
Geragos’ requests would go to an independent arbitrator, who will hear the case behind closed doors under the league’s collective bargaining agreement. The arbitrator’s rulings can be appealed in federal court — but courts generally defer to those decisions and seldom overturn them.
Trump’s alleged involvement is probably irrelevant to any claim of collusion, Edelman said, because Kaepernick is accusing the NFL of violating its collective-bargaining agreement, to which the president is not a party.
But he said the quarterback may have a separate claim against Trump that would be grounds for a future lawsuit: that the president coerced NFL owners to shun Kaepernick and other protesters with his recent, tweeted suggestion that Congress could withdraw tax benefits from teams that allowed the protests.
“When the president of the United States began incessantly tweeting in opposition to players kneeling, in a manner that reasonably could be construed as financial compulsion of the NFL teams not to hire Colin Kaepernick, there arises a realistic claim that perhaps football players’ rights to free speech were quashed by the U.S. government,” Edelman said.