Tarnished Twenty- The FindLaw Sports Law Blog

Colin Kaepernick's Grievance Claims 'Concrete and Actual Collusion' by NFL Teams

Former San Francisco Forty-Niner QB Colin Kaepernick filed a grievance and demand for arbitration against the NFL and all 32 member teams, alleging "NFL team owners, NFL employees, and team employees, have entered into and enforced, implied and/or express agreements to specifically deprive Claimant Colin Kaepernick from employment in the NFL," in violation of the league's Collective Bargaining Agreement.

The free has been out of football since the end of the 2016, during which he began kneeling during the national anthem to protest instances of police brutality specifically, and racial inequality in the United States generally. His grievance claims those protest led to the NFL and team owners to blackball him from the league.

Collective Collusion

There's no shortage of stats comparing Kaepernick's career numbers (and trip to the Super Bowl) to second-string QBs and even some starters currently on NFL rosters, yet despite outperforming those players, he remained unsigned. "The mere suspicion of collusion against Mr. Kaepernick has risen to the level of concrete and actual collusion," the grievance claims. "It is no longer a statistical anomaly but instead a statistical impossibility that Mr. Kaepernick has not been employed or permitted to try out for any NFL team since the initiation of his free agency period. NFL General Managers and team leaders have referred to directives from NFL owners to not let Mr. Kaepernick so much as practice with a team."

The Collective Bargaining Agreement between the league and the players' union contains a specific anti-collusion provision, Article 17:

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 as follows:
(i) whether to negotiate or not to negotiate with any player ...;
(iii) whether to offer or not to offer a Player Contract to any player ...: or
(v) concerning the terms or conditions of employment offered to any player for inclusion, or included, in a Player Contract.

Playing and Protesting

ESPN is reporting that Kaepernick's grievance will be overseen by the NFL's special master, Stephen Burbank, and the parties will likely conduct a conference call this week. NFL player protests drew the ire of President Donald Trump, who in September called players who refused to stand for the anthem "sons of bitches." While some owners locked arms with players in response to Trump's insults, Kaepernick's grievance alleges those shows of solidarity were "a public relations stunt," while the owners in reality "threatened players with fines and suspension if they refused to stand for the national anthem in the following weeks."

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