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  • Before accusing the NFL of colluding against Colin Kaepernick for his political activism, it's worth examining just what that charge entails and how hard it has been to prove historically.
By Michael McCann
March 24, 2017

Free-agent quarterback Colin Kaepernick’s political statements have clouded his pursuit of an offer from an NFL team this off-season. They have long attracted the scorn of the President, who at a rally this week cited a recent report that teams would fear political backlash for signing the 29-year-old former 49ers star. But is Kaepernick a victim of collusion, as some now suspect? It's worth examining what exactly that charge entails and how often it’s been proven in the sports world.

Collusion as a legal concept and why evidence matters

Collusion holds a technical meaning under the law. As a general matter in sports, collusion occurs when two or more teams, or the league and at least one team, join to deprive a player of a contractually earned right. Such a right is normally found in the collective bargaining agreement signed by a league and its players’ association. For example, the right of a free-agent player to negotiate a contract with a team cannot be impaired by a conspiracy of teams to deny that a player a chance to sign.

Collusion is most commonly associated with Major League Baseball, which arbitrators found guilty of the practice multiple times in the 1980s. Back then, MLB team owners plotted to not bid on each other’s free agents, and even when they did, they coordinated their bids and shared information with each other in advance about what they were offering. Such behavior—which led to owners paying players $280 million in a litigation settlement—was designed to deprive players of the fruits of free agency, in which the competition among multiple teams raises the price of a player’s services. If teams agree to not sign other teams’ free agents, then players’ right to free agency is essentially nullified and salaries will be suppressed.

More recently, Barry Bonds accused MLB of collusion after the 44-year-old outfielder offered to sign with any team for the league minimum in 2009 and found no takers, despite the fact that he was still one of the best hitters in the game. Bonds contended that teams had agreed to keep him out of the league. Others were skeptical of Bonds’s claim, noting each team may have individually concluded it didn’t want a 44-year-old outfielder who struggled defensively, who at the time faced felony charges for perjury and obstruction of justice and who had a decidedly controversial reputation. Six years later, an arbitrator ruled against Bonds, reasoning that even if Bonds’s theory of collusion was logical, he lacked evidence of teams conspiring against him.

Therein rests a key point about collusion: There must be actual evidence of a conspiracy. In the 1980s, some baseball owners and team executives took notes during meetings that later became evidence of collusion. If no such notes exist—emails, texts, voicemails, transcribed words from speeches, admissions of witnesses, whatever it is—there must be evidence that corroborates a player’s contention that he has been blackballed. A player merely pointing out that he has been treated worse than players of similar abilities doesn’t prove collusion. Teams are not obligated to sign anyone. On their own, teams can decide that a player with a controversial background is worth less than one without that background. This appeared to occur with Bonds: Each team decided, on its own, that it did not want him.

Though less prominent than the cases in baseball, allegations of collusion in the NFL have occurred from time to time. In 2011, the NFL Players Association filed collusion charges against the league. The NFLPA alleged that teams colluded to keep player salaries down during the ’10 season, which was uncapped due to a provision in the previous and at-the-time expiring CBA. NFL teams, the NFLPA insisted, behaved as if there was a salary cap when none existed. Four years later, a federal appeals court ruled for the NFL, reasoning that the CBA signed by the NFL and NFLPA in ’11 extinguished the collusion claims and that the players could not prove any fraud occurred.

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Does Kaepernick have a viable case for collusion?

If Kaepernick pursues a collusion claim, his first step would be to file a grievance under the CBA’s anti-collusion provision: Article 17. Under it, teams cannot enter into any agreement—whether express or even implied—to refrain from negotiating with a particular player. To be clear, Article 17 does not prohibit each individual team deciding, on its own, that it does not want to negotiate with a particular player. Collusion occurs when teams conspire, either with one another or with the league, against a player.

At the outset, it should also be noted that President Trump’s critical remarks about Kaepernick do not, on their own, advance a collusion claim. As SI’s Jonathan Jones detailed, Trump on Monday told a Louisville audience, “There was an article today, it’s reported, that NFL owners don’t want to pick [Kaepernick] up because they don’t want to get a nasty tweet from Donald Trump. Can you believe that?”

Even if Trump’s remarks made a team more apprehensive of signing Kaepernick, that in and of itself does not prove that teams conspired against Kaepernick. Trump does not fall in the category of relevant collusion actors: He doesn’t work for a team or the league. Kaepernick would need evidence that Trump’s statement was discussed by teams and through those discussions, teams agreed to keep Kaepernick out of the league.

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Further, the fact that teams have signed free-agent quarterbacks who are similar or arguably inferior to Kaepernick does not, on its own, prove collusion. Teams are under no obligation to sign one player over another even when statistical evidence and scouting reports suggest the team should have signed the other player. A team could conclude that Kaepernick might be a better quarterback except for the associated controversy of his political expressions. Such a team could then conclude that a less talented quarterback who doesn’t attract intense media coverage would be a better fit for team and the locker room. This seems particularly true if teams view Kaepernick as a backup at this point in his career—backups are usually expected to remain in the background.

If Kaepernick obtains evidence of collusion—perhaps through a suspicious email or an admission by a team official—he would then have 90 days to bring a grievance before the system arbitrator (who is neutral and picked by both the NFL and NFLPA). A hearing would then take place and the Federal Rules of Evidence would apply. Under Article 17, Kaepernick would bear the burden of demonstrating, by a clear preponderance of the evidence, that collusion occurred and that it caused him economic injury.

If Kaepernick prevailed, the system arbitrator would award Kaepernick two categories of damages. First, Kaepernick would receive compensatory damages for the economic harm he suffered. The amount of those damages would require some degree of speculation—it is impossible to know what contract Kaepernick would have landed if teams had conspired not to sign him. That would require knowing how an alternative history would have played out.

That said, Kaepernick would surely point out 27-year-old Mike Glennon signed a three-year deal with the Bears for $45 million, 31-year-old Brian Hoyer signed a two-year deal with the 49ers for $12 million and 37-year-old Josh McCown signed a one-year deal with the Jets for $6 million. Kaepernick, who threw 16 touchdowns against four interceptions in 2016, had a much higher QB rating (90.7) than McCown (72.3) in 2016 and while Kaepernick trailed Hoyer (98.0) in that category, his career QB rating exceeds Hoyer's. Kaepernick would contend that he should have received comparable or superior contract offers.

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Glennon’s deal is harder to compare given that the Bears are banking on his projected upside—he only threw 11 passes over the last two seasons. Still, while Glennon played reasonably well in 2013 and ’14, his numbers were inferior to those of Kaepernick during that time.

In addition to awarding Kaepernick compensatory damages, the arbitrator would also award him non-compensatory damages twice the amount of compensatory damages (three times if a team is a repeat offender). Hypothetically, if Kaepernick showed that he would have received a $6 million contract but for collusion, he would be awarded $18 million in damages: $6 million in compensatory damages plus $12 million in non-compensatory damages.

If Kaepernick filed for collusion under Article 17 and lost, he could then appeal the arbitrator’s award in federal court. However, as discussed throughout Deflategate and in other attempts by NFL players to challenge arbitration awards, Kaepernick would face an uphill climb. Federal courts are obligated to give an arbitrator’s award high deference.

Michael McCann is SI’s legal analyst. He is also an attorney and a tenured law professor at the University of New Hampshire School of Law.

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