Colin Kaepernick and the N.F.L. Settle Collusion Case
Colin Kaepernick has settled his grievance with the N.F.L., which he accused of colluding to keep him off a team.
By Kevin Draper and Ken Belson
Feb. 15, 2019
The N.F.L. and Colin Kaepernick, the former San Francisco 49ers quarterback who ignited a protest movement against racism and police brutality by kneeling on the sideline during the playing of the national anthem at games, have settled a case that accused the league of colluding to keep him off a team. The league also settled a similar claim lodged by another player, Eric Reid, who knelt alongside Kaepernick and went unsigned for a period before playing last season for the Carolina Panthers. The statement by the N.F.L. said that “the parties have decided to resolve the pending grievances” and that “there will be no further comment” because the players and the league reached a confidentiality agreement.
The terms of the settlements were not disclosed. Kaepernick’s lawyer, Mark Geragos, issued a similar statement.
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Geragos did not return calls for additional comment.
Kaepernick has not played in the N.F.L. since the 2016 season. He filed his grievance under the league’s collective bargaining agreement in October 2017, and his lawyers have been busy gathering evidence and testimony from numerous N.F.L. owners, including Jerry Jones of the Dallas Cowboys and Bob McNair of the Houston Texans who spoke publicly about Kaepernick’s protests and their negative impact on the league. McNair died in November.
Kaepernick began his protests in August 2016 after several African-American men were shot by police officers.
A number of players across the league joined him in kneeling during the anthem, generating a debate over race and player activism, drawing angry tweets from President Trump and flummoxing the league over how to respond. Last year the N.F.L. instituted a policy under which players could remain in the locker room during the playing of the national anthem, but if they were on the field they would have to stand.
But that policy was suspended after the N.F.L. Players Association filed a grievance, and it was never enforced.
The sideline protest movement, however, seemed to lose momentum and few players knelt during this past season. Kaepernick has said little, reserving most of his comments to his social media accounts. During the Super Bowl, he posted on his Instagram account pictures of athletes and celebrities wearing jerseys supporting his cause. Legal experts have said collusion cases are notoriously difficult to prove, which makes it highly unusual for the league to settle these kinds of cases. It is possible Kaepernick’s lawyers had gathered enough persuasive evidence and testimony from owners, league officials and football experts that Kaepernick stood a reasonable chance of persuading the arbitrator hearing the case to rule in his favor.
Had Kaepernick won his case in a full hearing, he would have been eligible to receive the money he might have received if he were signed as a free agent. The damages would be doubled. Given Kaepernick’s stature in the league as a starting quarterback who had led his team to the Super Bowl, in 2013, a new, multiyear contract could have been worth tens of millions of dollars. Carl Tobias, who teaches at the University of Richmond School of Law, said that parties settle for all sorts of reasons, even when they believe they may prevail in court. But the N.F.L., he said, most likely wanted to move on from the issue.
“I think the N.F.L. just wanted to get this behind them and not have this threat hanging over them,” Tobias said. “I think they’d pay whatever they’d get away with to stop the hemorrhaging and the negative light on the league.”
According to the collective bargaining agreement between the league and the union, the burden is on the player to prove that owners actively conspired against him.
“That is often difficult to do because parties typically don’t leave a written record of their illegal maneuvering,” said William Gould, who was chairman of the National Labor Relations Board and oversaw the Major League Baseball strike in 1994.
Kaepernick, however, received a favorable ruling in August when the arbitrator overseeing the case, Stephen B. Burbank, dismissed the league’s attempt to have the case thrown out and said that the case could proceed, allowing lawyers for Kaepernick to question owners and league officials in a format similar to a trial.
It was anticipated that Burbank would rule on the case this spring, and as of last week lawyers for Kaepernick were still preparing for final hearings in front of Burbank, according to a person with knowledge of the preparations.
Even though Kaepernick has not played in more than two years, his name had continued to surface every time an N.F.L. team signed a new quarterback. Many of them had less experience or statistically did not seem to measure up to him.
The Associated Press also reported this week that a new league, the Alliance of American Football, spoke with Kaepernick about playing for it but that he wanted at least $20 million to consider playing in it.
Kaepernick’s N.F.L. case at times also exposed a bit of a rift between Kaepernick and the N.F.L.P.A. Kaepernick hired his own lawyers for the case instead of going through the union, and the union’s statement on the resolution said it was informed of the settlement by the N.F.L. and was unaware of the terms. https://www.nytimes.com/2019/02/15/sports/nfl-colin-kaepernick.html