Colin Kaepernick, a famous athlete, just settled one of the most high-profile legal actions in the sports world. Kaepernick, a star National Football League (“NFL”) quarterback, at one point took his team – the storied San Francisco 49ers franchise – to the Super Bowl (losing in a heartbreaker to the Baltimore Ravens). He has the second lowest interception percentage in NFL history, fourth best touchdown-to-interception ratio, and best ever rushing yards by a quarterback in a game and in a single postseason. But it has been years since he has been signed to an NFL contract, causing him to file a grievance against the NFL and its constituent teams alleging they blackballed him. So, what was this all about?
Taking a Knee
Even with his impressive athletic statistics, Kaepernick may be even more famous for what he has done off the field. Beginning in 2016, Kaepernick first sat and then started taking a knee when the National Anthem was played at the start of NFL games. He explained his actions as designed to call attention to racial issues in the United States, including alleged police misconduct against black people. Kaepernick’s action quickly drew the attention of national media. Soon, other players joined in. He had consulted with Nate Boyer, a former Green Beret and retired NFL player, to ensure his protest was respectful. Nevertheless, many fans and other observers were offended and considered him disrespectful. President Trump weighed in and called for players participating in the protest to be fired.
Collusion?
Kaepernick became a free agent in 2017. As a scrambling quarterback, one who relies almost as much on his feet as on his arm, there have always been questions about his long-term viability. While the reason has been debated, since 2017, he has not been signed by any NFL team. Teams have justified their decision by saying Kaepernick’s skills have eroded or that they simply preferred other quarterbacks with different skill sets.
However, Kaepernick believes, rather than making legitimate football decisions, teams have banded together to keep him out of the league to avoid the controversy surrounding his activism. On its face, his claim has credibility. This past season, when the Washington Redskins lost their top two quarterbacks, they signed Mark Sanchez and Josh Johnson to fill the openings. Sanchez, while a former first round pick, has thrown almost 3 times as many interceptions as Kaepernick (while being in the league only slightly longer) and has never led a team to the Super Bowl. Johnson had not thrown an NFL regular season pass since 2011. In his first game as the starter, a game in which the Redskins lost 40-16 to the New York Giants, Sanchez only completed 6 of 14 passes for just 38 yards, no touchdowns, and two interceptions. By contrast, a strong quarterbacking performance often results in 200 or 300 passing yards (if not more) and multiple touchdown passes. One journalist wrote an article headlined, “Mark Sanchez playing over Colin Kaepernick is maybe biggest black mark in recent NFL history.” FiveThirtyEight, an analytics blog, wrote, “The Stats Say Washington Should Have Signed Colin Kaepernick…”
Kaepernick filed a grievance against the NFL, under the player’s union contract, accusing teams of colluding against him.
Resolution through the Collective Bargaining Agreement
Since the NFL is a unionized operation, it is governed by a collective bargaining agreement (the “CBA”). The CBA is essentially a contract negotiated by representatives of team owners and players. It sets out what employment actions are permitted. Article 17, Section 1 of the CBA states teams cannot make agreements with each other or the league to restrict or limit a team’s decision-making with respect to, among other things, whether or not to negotiate with a particular player and whether or not to offer an employment contract to a player.
The CBA provides for arbitration in the event of a dispute under the CBA (a grievance). This is a trial-like procedure where a neutral third party, known as an arbitrator, determines which side is right. Lawyers for Kaepernick spent months deposing NFL team owners and reviewing documents to make their case. In August, the arbitrator assigned to the case ruled there was enough evidence for the case to proceed to a full hearing.
Ultimately, both sides chose to settle the case rather than continue the fight and risk a loss at trial. In addition, the public relations fallout could have been disastrous for the NFL had it lost at trial. The settlement is confidential, so we will likely never know how much money was paid. However, there was certainly a lot at stake in the case. A collusion case brought against Major League Baseball in the late 1980s settled for $280 million. That case, however, involved 16 players, so it is unclear if the number here was that high. Although, considering the way professional athlete salaries have grown in the intervening thirty years – the amount may still have been substantial. We may never know.
Brody and Associates regularly advises its clients on matters involving arbitration and other areas of alternative dispute resolution. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
