Former San Francisco 49ers quarterback Colin Kaepernick and safety Eric Reid each filed collusion grievances against the NFL alleging that teams haven’t signed the pair of free agents due to their protests during the national anthem.
To win the case, Kaepernick and Reid have to prove that NFL teams collectively blackballed the players.
“If you’re asking me legally, collusion cases — to put it bluntly — they’re a bitch to prove,” New York University law professor Arthur R. Miller told SB Nation earlier in May.
Even after an eventful week in the NFL that provided Kaepernick and Reid with more evidence in their favor, it’s still probably a long shot. But the NFL’s rollout of a new national anthem policy was a boon to their cases:
1. The NFL showed a collective will to quash protests
Agreeing on a rule change doesn’t necessarily show a collective agreement to keep Kaepernick and other prominent voices off rosters. But it does show that NFL owners have a common goal of shutting down protests during the national anthem.
In the revamped policy passed Wednesday, the league said that its “membership” of 32 owners “strongly believes that all team and league personnel on the field shall stand and show respect for the flag and the anthem.”
Teams can be fined by the NFL if players don’t stand or show respect during the anthem.
Shortly after the new policy was passed, Mark Geragos, the lawyer representing Kaepernick and Reid in their grievances, tweeted a link to the news with the hashtag “#nflcollusion.” It was retweeted by both Kaepernick and Reid.
In an interview with the New York Daily News, Geragos blasted the policy change:
“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.
The policy may not show that teams blackballed Kaepernick or Reid, in particular. But at the very least, it shows the NFL and its team owners are directly opposed to the protest.
2. The White House’s involvement toes the line of legality
Donald Trump has antagonized the NFL for years and took a strong stance against players who chose to kneel during the anthem. In September 2017, Trump said at a rally that he wished an NFL owner would say, “Get that son of a bitch off the field right now, out, he’s fired!” when a player kneeled.
So it wasn’t surprising when the White House took a victory lap after the NFL passed a policy that bans kneeling. Pence tweeted a screenshot of the news with the hashtag “#Winning.” The tweet was retweeted by Trump.
Geragos responded with a “Winning!” tweet of his own and a link to a law that prohibits members of government from influencing a private entity’s employment decisions “solely on the basis of partisan political affiliation.” The tweet was retweeted by Kaepernick.
Trump previously bragged of his influence on Kaepernick’s unemployment, telling a crowd that NFL owners were shying away from the quarterback because “they don’t want to get a nasty tweet” from the president.
Reports from the NFL meeting indicate there could be truth to that:
Hearing from players asking why the league felt a need to address anthem protocol when only a handful of guys were kneeling by the end of last season. In a word: fear. In two words: Donald Trump. They did not want him using their brand as a “weapon” during midterms, one said.— Jim Trotter (@JimTrotter_NFL) May 23, 2018
NFL owners appear to be collectively concerned about the White House’s reaction to protests — so much so, that it was reportedly one of the reasons rules were changed despite the protests mostly dying out. The choice not to sign Kaepernick may be individual teams aiming to avoid negative press.
But Kaepernick’s case could try to show multiple teams advised each other not to sign the quarterback with Trump’s influence looming.
3. NFL hired a firm to poll fans regarding Kaepernick
According to Yahoo Sports, the NFL hired a research firm, The Glover Park Group, to conduct a poll in 2017 to gauge fans’ opinion of Kaepernick.
The data sought by the NFL included fan attitudes about a few high-profile league concerns, including domestic violence, gambling, player protests and player safety. Sources noted that Kaepernick was the only player singled out in the research for specific opinions, which were then compiled and sent to various league officials, including commissioner Roger Goodell and several other high-ranking executives.
The fact that Kaepernick was singled out as the only player in the survey could be significant.
According to sources, the NFL approved research that sought two pieces of information: Whether Americans believed Kaepernick should have been signed by an NFL team; and given that Kaepernick remained a free agent, whether fans believed that was because he refused to stand for the national anthem or due to his on-field performance or other reasons.
The results of the survey weren’t revealed, but it reportedly showed “a deep racial, political and generational division when it came to player protest.”
Sports law expert and Baruch professor Marc Edelman told the New York Daily News that the survey could be a substantial part of Kaepernick’s collusion case.
“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.”
Geragos did not comment on the survey when contacted by the Daily News, but said it’s “just the tip of the proverbial iceberg.”
It’s also not clear if the findings of the study were distributed to NFL teams, but the thoughts of fans were cited by several owners as a reason for the policy change. A statement from Steelers owner Art Rooney said that “the vast majority of our fans ... do not want to come to a game to see a political protest.”
There’s plenty of evidence to suggest that’s a stretch. The NFL’s viewership has done just fine, in spite of the controversy. While Rooney is likely correct in a literal sense that football fans want to watch football, it doesn’t necessarily mean the “vast majority” fans don’t want players to have the right to protest.
And even a survey that cites fans threatening not to watch doesn’t necessarily mean those fans will actually follow through.
“The trouble with self-reported surveys is people will say whatever they want,” Anthony Crupi, an AdAge reporter who covers the television industry, told ESPN’s Mina Kimes in February.
It’s clear that fans are divided and with the opinion of fans at the core of league owners’ decision-making regarding the new anthem policy, the NFL’s survey about Kaepernick could prove to be significant in the collusion case.
4. The NFL technically didn’t hold an official vote on the anthem policy
If there was any news that didn’t help Kaepernick’s case this week, it may be that the NFL didn’t technically take a formal roll-call vote to pass the new policy. NFL commissioner Roger Goodell called it a “unanimous” decision among team owners, but at least two owners were reportedly ready to abstain from a vote.
A quick show of hands of owners showed a consensus for the new policy and “that was considered a vote,” NFL spokesperson Brian McCarthy told ESPN.
It’s possible that the lack of a real unanimous vote could give owners plausible deniability in their individual involvement in the passing of a new anthem policy.
On the other hand, Kaepernick and Reid don’t need to prove that 32 teams are working together to keep them out of the league. Collusion, in this case, is defined in the collective bargaining agreement 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.
If even one NFL team advised another not to sign Kaepernick or Reid, that would be an example of two teams colluding.
Kaepernick and Reid didn’t win their case this week, but the NFL’s new anthem policy and its immediate fallout helped them in many ways.