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A law professor explains why it’ll be ‘a bitch’ for Eric Reid to prove NFL collusion

Eric Reid joined Colin Kaepernick in taking a knee to protest racial injustice, and now he joins him with a collusion grievance against the NFL. Here’s what you need to know.

Arizona Cardinals vs San Francisco 49ers Photo by Ezra Shaw/Getty Images

On Wednesday, former 49ers safety and current free agent Eric Reid filed a collusion grievance against the NFL. It was the same type of case that his former teammate, Colin Kaepernick, filed against the NFL in November.

Just like Kaepernick’s case, Reid’s will be closely followed. Both players began kneeling during the national anthem during the 2016 season, and Reid continued to kneel while Kaepernick went unsigned in 2017. The outcomes of their grievances may be important in NFL labor history. If they win, it could set a precedent in upholding the rights to free speech that NFL players have under ownership.

SB Nation spoke to Arthur R. Miller, professor at New York University’s Law program to help wade us through the murky waters of collusion. Here’s what you need to know.

What’s collusion in this case?

Collusion is defined in the NFL’s collective bargaining agreement in Article 17.1.a:

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

Who will hear the case?

The NFL and the NFLPA must agree on an independent arbitrator. Since 2011, Stephen B. Burbank (a Penn Law professor) has been the NFL’s system arbitrator, and has presided over high-profile issues in the past.

How will Reid prove collusion?

The NFL’s CBA requires the following to prove collusion:

The complaining party shall bear the burden of demonstrating by a clear preponderance of the evidence that (1) the challenged conduct was or is in violation of Section 1 of this Article (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) and (2) caused any economic injury to such player(s).

For Reid to prove collusion, according to Miller, “He would demonstrate that he is a bonafide NFL-qualified safety. He could show the fact that his stats are better than the safeties that the Bengals had. He could show that now that the draft is over, there are teams out there who need a safety.”

Reid likely has a strong case that he is not only an above average NFL safety, but an above average starting NFL safety. He has started 69 games for the 49ers since being drafted in 2013, racking up 264 tackles and 10 interceptions, and earning a Pro Bowl nod in his rookie year. At just 26 years old, that level of play should continue for the foreseeable future, and he doesn’t have injury concerns, having missed just nine games in his career. He even expanded his role with the 49ers last year, playing both safety positions as well as some linebacker.

At the same time, the market for safeties has been dry this offseason for purported reasons such as less money for free agents across the league this year, as well as a lack of speed at the position. There is evidence of non-kneelers having trouble finding jobs, too, which may hurt Reid’s case.

On the other hand, an April meeting with the Bengals suggests that NFL teams may be evaluating Reid through a different lens. Team owner Mike Brown reportedly asked Reid about his kneeling, and told him he intended to prohibit it. Reid wouldn’t make a commitment to the team about whether he would kneel at the time. He would later be asked by head coach Marvin Lewis if he wished to clarify his stance on kneeling, and Reid declined.

Miller said that Reid probably doesn’t have to show that all 32 owners are colluding against him. “If he can show — and this is very difficult — if he can show concerted action by a core group of them followed by parallel conduct by the others, he may be a winner.”

The “concerted action” here being that a group of owners conspired to keep him from getting signed.

What would the NFL’s counterargument against Reid look like?

The NFL’s argument against Reid, strictly from a player standpoint, could have several facets to it, according to Miller:

  • Reid is of diminishing quality as a player
  • There is an overabundance of safeties
  • The draft forces players out with younger, less expensive talent.

“That’s the business model,” Miller said. “That might come in by way of justification. It wasn’t collusion, it was just parallel conduct by owners and managers and head coaches saying, ‘He’s past his prime, and we can get something better, cheaper, in the draft market.’”

As of the writing of this piece, the safety market in the NFL has stalled. Teams are reportedly lowballing players on offers, and an NFL executive told Sporting News “the overall lack of top-end speed among free-agent safeties is one of the contributing factors.” For a player like 2018 first-round selection Derwin James, he’ll be getting a four-year deal worth almost $12.5 million, with a fifth-year team option. When the 49ers picked up Reid’s fifth-year option, he made $5.676 million, according to Spotrac.

Reid’s estimated market value, according to Spotrac, would be an $8.6 million annual salary. His free agency salary demands are unknown, but he was willing to return to the 49ers on a one-year contract at his 2017 salary, according to reports. But even seemingly playing for well less than market value would still make him more expensive than a talented young rookie.

Would being asked to stand for the national anthem prove collusion?

Miller noted that private associations, private entities, and teams in a private league can set rules. “And if the owner or the head coach says, ‘Everybody must stand for the national anthem,’ that is enforceable,” he said.

Challenging those associations involves exploiting the ambiguity of their rules.

“The comeback to [being a private association] is, this is arbitrary and capricious, and it restricts an individual’s free speech rights,” Miller said. “And the answer to that is of course it would restrict his free speech rights, but not when you get out on the field inside the stadium.”

The fact that there is no rule currently in place that says that players must stand for the national anthem doesn’t hurt the NFL, according to Miller. The NFL could say that standing for the anthem has been the universal practice for years.

Has anybody ever won a collusion case in the past?

Collusion cases are rare in the NFL, and have never been won by the player. But they have in Major League Baseball:

MLB team owners were found to have colluded against players by limiting free-agent contracts in three consecutive offseasons: 1985, 1986, and 1987. The Players Union filed grievances against ownership following each offseason — respectively dubbed Collusion I, II, and III — and an arbitrator sided with the players in each case. By the end of 1990, an overall settlement had been reached, and Ueberroth had resigned as commissioner.

According to Miller, collusion cases are much more common in the telecommunications industry, and occasionally won. He brought up the 1984 case in which the University of Oklahoma alleged antitrust violations by the NCAA with regard to television broadcast rules that prohibited a football program from appearing on television too often.

“It was struck down, not so much because there was collusion, but because it was a straight on violation of the antitrust laws. It was a restriction on the market. That’s the closest analogy you can think of.”

Even then, Miller notes, the failure rate is high for those alleging collusion.

What are Reid’s chances?

Miller explained that collusion is one of the “most difficult things in the world to prove” because the accuser has to demonstrate concerted action by multiple people.

A key part of this process, in particular, is that Reid’s case is being heard by an arbitrator, as opposed to a judicial proceeding. Arbitration is overseen by one third party arbitrator, as opposed to a jury.

“This is me talking personally,” Miller said. “I’ve always had a slightly dim view of arbitration because arbitrators like to get continuing business. Now who would you prefer? The NFL, or Mr. Reid? Who is likely to give you continuing business? That’s a very cynical view, but you got to see that arbitrators are very different from trial before court, let alone a jury.”

Whether in arbitration or in a judicial proceeding however, Miller was honest. “If you’re asking me legally, collusion cases — to put it bluntly — they’re a bitch to prove.”

How does this relate to Kaepernick? Does it help Reid, and vice versa?

Reid and Kaepernick are both being represented by Los Angeles criminal defense attorney Mark Geragos, who Miller called “one of the best lawyers in the country.”

“But his skills are courtroom skills,” Miller added. “This is — again — an arbitration. Geragos is a great jury lawyer, he’s a great trial lawyer, he may be just as great an arbitration lawyer. I don’t know. I think the basic point is, he is a great lawyer.”

Miller believes Geragos being in on both cases is helpful, since Geragos knows what’s going on for both players. “Some of the stuff that will come out in the Kaepernick case might be useful in the Reid case, we don’t know,” However, he added, “One of the benchmarks of arbitration is confidentiality.”

“If you assume that Kaepernick is the stronger player, his case is stronger than Reid’s.” Miller said that in theory, if Kaepernick were to win, that Reid should win because Kaepernick would have proven collusion, and Reid participated in the kneeling alongside Kaepernick.

“There may have been collusion,” Miller said. “I do not understand how, for example, you can say Kaepernick is not employable when there are several teams in the league that lack quarterbacks of his caliber, let alone backup quarterbacks of his caliber. It’s a very tough case.”

But Miller also provides a scenario in which owners claim Reid to be a different type of player under the idea that, “He’s not as employable as Kaepernick.”

Does the NFL have any kind of advantage over other workplaces when it comes to a collusion case?

It does. Miller points to the collective bargaining agreement, which he says gives “enormous power to the league.”

Miller said the CBA gives, “The ability to shove these grievances into arbitration, rather than getting exposed in a transparent judicial proceeding.” He added, “That’s a tremendous difference, the ability to keep everything relatively quiet in arbitration versus fighting it out with reporters sitting in a courtroom.”

What does Reid get if he wins?

No team can be forced to sign Reid, but in Article 17.9 of the CBA, a first time offense of collusion would be “two times the amount of compensatory damages.” Last season, Reid made $5.6 million with the 49ers. But the league cannot force a team to sign Reid.

If Reid is signed to a team before the grievance process is complete, he could — but does not have to — drop the grievance. He could continue to attempt to prove that he NFL teams colluded against him. For example, he may feel like he was signed for less than what his value is. Or, he could continue the case if he feels it could set a precedent against the league.