Kaepernick Lawsuit Could Permanently Bench the NFL Privilege

Dec 22, 2017

By Drew Sherman
As the saying goes, playing in the National Football League (NFL) is a privilege, not a right. That type of thinking makes sense since the NFL is nothing more than a private club of 32 members that allows the media and general public limited access for, approximately, five months a year. Yet, though the central purpose of this private, 32-member club (the NFL) is about competition, the 32 competitors get to make their own rules, get to police themselves, and get to decide the definitions of right and wrong outside the strictures of the laws of the federal government.
Further, though this 32-member, private club markets to the consuming public and takes in revenues from the same consuming public, the NFL has enjoyed a freedom from the United States’ antitrust laws that are an ever-lurking threat to even the biggest of companies in the U.S. (AT&T, Time, etc.). While the federal government seeks to stimulate competition in various industries around the nation, the NFL engages in anti-competitive behaviors, such as blackout/non-sellout home games from the local market television broadcasts, dictating the number of teams that are allowed to be located in a given market, or having their governing body (the NFL commissioner’s office) be subject to the whim of the 32 competitors without any checks and balances.
However, the NFL’s freedom from ubiquitous anti-competition laws of the United States is in jeopardy. This past mid-October, Colin Kaepernick, formerly of the San Francisco 49ers, filed a lawsuit in California against all 32 members of the private club known as the NFL, as well as the private club itself, alleging acts of uncompetitive behavior, mainly collusion by all 32 team owners to keep Kaepernick unemployed, as alleged, because of his continued exercise of protest by kneeling during the national anthem.
The Collective Bargaining Agreement (CBA), signed in 2011 between the Players’ Union and the NFL owners, expires in 2021, but, more importantly, provides the 32 club members with a contractual right to engage in anti-competitive behavior, as acknowledged by the Players’ Union in its signing. Though the CBA expressly prohibits NFL teams, coaches, agents, owners and executives from coming to any agreement (expressed or implied) to restrict or limit a team’s decision-making when it comes to contract negotiations, offer sheets for restricted free agents, contract offers, or terms or conditions of employment, the language does not necessarily foreclose the argument that the owners can willingly agree collectively to not hire a person. Moreover, the CBA also provides the NFL commissioner with almost unfettered power over the players, their ability to work and their ability to earn a living.
If Kaepernick is successful in his lawsuit, the reverberations could change the nature of how professional football is run, making a lasting effect on pro-football. Not only would a win by Kaepernick force the NFL owners back to the negotiating table with the Players’ Union before next season gets underway (something the NFL owners definitely do not want to happen), but a win by Kaepernick would also open the door by setting precedent to the NFL being opened up and subject to federal laws relating to unfair competition and monopolies, and potentially other federal laws that have passed over the NFL until now.
An example of the great changes Kaepernick’s lawsuit could bring can be found in Major League Baseball with a player named Curt Flood. Today, a professional athlete’s status as a free agent is commonplace. But, up until the 1970s, free agency was nearly unheard of in professional baseball due to the reserve clause in baseball contracts. The reserve clause allowed for a team to hold on to a player it drafted even if he was not re-signed by the same team. The player, if not re-signed, could not try out for another team and try to secure a contract to play. That player would have to get permission from the team that did not re-sign him, effectively preventing a player’s right to earn a living.
However, this structure was challenged by Curt Flood, an outfielder for the St. Louis Cardinals, when he refused to show up to training camp after he was traded to Philadelphia, a perennial loser. Flood appealed to baseball’s commissioner Bowie Kuhn to grant him free agency. The request was denied, with the commissioner citing the “reserve clause.” Flood took Kuhn and Major League Baseball (MLB) to federal district court and all the way to the U.S. Supreme Court, alleging violations of federal antitrust laws and argued that the lack of free agency for players depressed wages and limited players’ ability to find work. Flood v. Kuhn, 407 U.S. 258 (1972). While Flood lost his case with the Supreme Court relying on stare decisis and the case of Federal Baseball Club v. National League, 259 U.S. 200 (1922) (a Supreme Court case in which the famous justice Oliver Wendell Holmes declared that the MLB was not subject to federal antitrust laws) in a 5-3 ruling, that lawsuit was the impetus for making free agency the common circumstance for players today. 
Kaepernick’s case will not start free agency in the NFL, as it is already the norm. However, Kaepernick’s lawsuit, like Curt Flood’s against the MLB, most likely will have the effect of the NFL being regulated as an industry for anti-competitive behavior, just as the telephone industry, computer software industry and the media industry have been regulated. 
No longer will the 32 members of this private club get to collectively decide the rules and the governor they will be governed by, as such acts would be anti-competitive and monopolistic. No longer will the 32 members of this private club be allowed to meet, without oversight from the federal government, right before the Super Bowl to discuss issues facing their league. The 32 club members’ decision to “blackball” Kaepernick because he wanted to exercise his right to freedom of protest might have just cost the 32 members of this private club their freedom to run and operate their club as they wanted. 
Drew Sherman is Co-Head of Entertainment and Media with ADLI Law Group, focusing on civil, entertainment and intellectual property litigation and transactions. He can be reached at drew.sherman@adlilaw.com or 213-537-1670.


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