By Richard Lee and Natalie Rastegari, Salisian Lee LLP
For years, the NFL’s steadfast popularity with the American public has remained impregnable and unwavering, with legions of fans seemingly always ready to forgive negative news about players, owners, or even the commissioner in loyally following their favorite teams on television, in person, and in discussion. Lately, however, the NFL has seen its attendance figures drop, television and radio ratings decline, and negative news coverage increase. To some, these negative news stories about selected NFL players have created an atmosphere of dissonance with the Average Joe.
At the center of many of those controversial news stories in the past couple of years has been former San Francisco 49ers quarterback Colin Kaepernick, whose very public position on kneeling during the national anthem to bring attention to issues of police brutality created international headlines. Accordingly, a rumored backlash by NFL owners against Colin Kaepernick, most overtly in his inability to find employment by an NFL team, remains the focal point of Kaepernick’s ongoing employment grievance against the NFL.
Did NFL team owners collude against hiring former San Francisco 49ers quarterback Colin Kaepernick for any team this past season? And will Kaepernick be able to prove collusion and win his legal battle against the NFL and all of its 32 teams? The two are separate, distinct issues, and the latter appears likely to be an uphill battle.
But Kaepernick’s chances of success just got better, and the stakes just got higher. Last week, probably to the horror of the league, Miami Dolphins owner Stephen Ross told the New York Daily News: “All of our players will be standing [for the national anthem].” Ross stated, “when you change the message, about, is it support of our country or the military, it’s a different message. When that message changed, and everybody was interpreting it as that was the reason, then I was against the kneeling.” (Kaepernick repeatedly stated in his final 2016 season that his kneeling during the national anthem was a protest of police brutality and racial injustice.)
Ross went further in saying that President Trump’s “message became what kneeling was all about,” and admitted that his view about player protests was shaped by it: “From that standpoint, that’s the way the public is interpreting it. So, I think that’s really incumbent upon us to adopt that, because that’s how I think the country is now interpreting the kneeling issue.”
Let that sink in. Ross, an owner of a major NFL team, is explicitly requiring a protest-free zone that runs contrary to our First Amendment principles. The repercussions for any non-compliant team player is suggested to be like those experienced by Kaepernick.
A day later, likely on the advice of legal counsel, Ross backed off on his position and issued a statement to clarify that there will be no anti-kneeling policy. Why is this all so important, and why does Trump’s interpretation of the anthem protests matter?
Kaepernick demand for arbitration against the NFL and its teams alleges that NFL owners (1) were coerced by Trump’s comments and the rhetoric at large, (2) communicated and coordinated with the Trump Administration, and (3) ultimately colluded against Kaepernick and his efforts for employment in the NFL. A copy of Kaepernick’s arbitration demand can be found here.
Kaepernick has alleged violations of the NFL’s Collective Bargaining Agreement (“CBA”), Article 17 of which prohibits any club, employees or agents from entering into any “express or implied” agreement “to restrict or limit” decisions on whether to negotiate with any player; whether to offer a contract to any player; or “concerning the terms or conditions of employment offered to any player.” As alleged in the arbitration demand, Kaepernick alleges that the NFL and its owners have enforced “implied and/or express agreements to specifically deprive Claimant Colin Kaepernick from employment in the NFL, as well as from practicing with and/or trying out for NFL teams,” and have “colluded to deprive Mr. Kaepernick of employment rights in retaliation for Mr. Kaepernick’s leadership and advocacy for equality and social justice.”
Ross’ statements are evidence of the NFL owners’ implementation of Trump’s anti-protest rhetoric. Within a day of Ross’ statements, Kaepernick’s lawyers jumped on this new evidence and subpoenaed Ross for his testimony on this subject, and have already subpoenaed the spouses of team owners. Kaepernick’s lawyers will likely use Ross’ statements, as well as other evidence including statements by other owners and Trump’s statements, to support their claim that the NFL owners were directly influenced by Trump’s comments and rallying of the crowds.
Specifically, Kaepernick is attempting to show that his unemployment in the league in part stems from owner response to Trump’s criticism regarding the NFL’s handling of national anthem protests and Trump’s explicit statements on the campaign trail shortly after Kaepernick became a free agent on around March 3, 2017. Indeed, Trump seemed to relish the fact that he had power over the league, stating that the “NFL owners don’t want to pick [Kaepernick] up because they don’t want to get a nasty tweet from Donald Trump.” Trump also famously stated: “Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a b**** off the field right now. Out! He’s fired. He’s fired!’”
By now, Kaepernick’s lawyers have reviewed tens of thousands of documents during the discovery process in the case, and they have surely found emails exchanged between NFL officials relating to the NFL’s position on anthem protests. There are likely emails and statements illustrating an official NFL position that players have the right to demonstrate — consistent with the NFL’s most recent statement that “the right of players to demonstrate would be protected” in this upcoming season.
On the other hand, there are likely emails and statements showing that the NFL did not in fact protect this right. Depositions in Kaepernick’s case against the NFL and its owners are set to begin as early as this month, which may provide additional ammo for Kaepernick’s legal team to show that there is, at the very least, “indirect” collusion in the NFL against protesting players.
The evidence is undisputed that Kaepernick is a talented player on the field — who led his San Francisco team to a Super Bowl appearance as its starting quarterback — and certainly better, at least statistically and in his win-loss record, than the likes of Brandon Weeden, Blaine Gabbert, and other, lesser veteran quarterbacks signed in free agency in the past year or more.
Head coaches named on Kaepernick’s witness list will need to explain their positive statements to Kaepernick regarding interest in signing him, only to then go silent when it came time to act. The arbitrator will have to decide whether NFL owners were affected by or participated in that anti-protest pushback — for which Kaepernick can surely make a prima facie showing — and whether they colluded against hiring him to essentially banish him from the league.
If Ross’ public statements are any indication of the testimony that Kaepernick’s lawyers may elicit in the numerous upcoming depositions, it would be wise for the NFL to settle this dispute — whether that means (1) offering up significant money in exchange for a dismissal and Kaepernick’s silence or (2) granting Kaepernick the opportunity to earn his place on a team. Given the NFL’s fear of alienating its fan base or eliciting further negative Twitter trolling from the White House, it appears probable that the former option is the more palatable one for the NFL.
Richard Lee is a founding partner of Los Angeles-based business law firm Salisian Lee LLP.
Natalie Rastegari is an associate of the firm.
