Why Robert Kraft's Deposition Could Play a Key Role in Colin Kaepernick's Collusion Case
A source with knowledge of Colin Kaepernick’s collusion grievance has told The MMQB that attorneys for Kaepernick deposed New England Patriots owner Robert Kraft on Friday. The source says the deposition occurred at Patriot Place in Foxborough, Massachusetts. It is the latest in a series of depositions of influential NFL figures who could have information pertinent to Kaepernick’s grievance. That list includes Dallas Cowboys owner Jerry Jones, Denver Broncos President of Football Operations/general manager John Elway, Houston Texans owner Bob McNair and NFL commissioner Roger Goodell.
Kraft has long been a person that attorneys for Kaepernick and the NFLPA likely view as having potentially relevant information. There are at least four topics that the deposition probably covered.
Kraft’s flight with Trump on Air Force One in March 2017
As we reported on The MMQB last November, a source familiar with Kaepernick’s grievance believes that a two-day sequence of events involving Kraft and President Donald Trump last March may prove influential in explaining why Kaepernick doesn’t have a job.
On Sunday, March 19, 2017, Kraft flew on Air Force One with Trump from West Palm Beach to Washington D.C. The fact that Kraft flew with Trump was not especially noteworthy. A year earlier, Kraft had praised Trump shortly before the Massachusetts presidential primary. At the time, Kraft described Trump as “a very close friend of mine for over two decades.” Kraft is also one of only a few dozen persons who, according to Olivia Nuzzi of New York Magazine, Trump has cleared for a direct phone line to him. Trump, for his part, is also a significant figure in Patriots history, as he almost bought the team in 1988.
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The following day—Monday, March 20, 2017—Trump generated media attention for comments he made about Kaepernick. While speaking to a Louisville audience, Trump referenced an article by Bleacher Report’s Mike Freeman. In the article, an unnamed AFC general manager said that any team that signs Kaepernick would attract the Twitter hate of Trump. Trump told the crowd, “There was an article today, it’s reported, that NFL owners don’t want to pick him up because they don’t want to get a nasty tweet from Donald Trump. Can you believe that?”
It stands to reason that Kaepernick’s attorneys would ask Kraft about whether he and the President spoke about Kaepernick on their flight. To be clear, Kraft and Trump talking about Kaepernick, even in a negative light, would not prove collusion. Under Article 17 of the collective bargaining agreement, Kaepernick must convince a neutral arbitrator (University of Pennsylvania law professor Stephen Burbank) by a clear preponderance of the evidence that two or more teams, or the league and at least one team, conspired to deprive Kaepernick of the right to sign with a team.
In this context, Trump is only a third party: The President obviously does not own a team and he doesn’t work for a team or the NFL. Stated differently, even if Kaepernick could prove that Kraft and Trump somehow conspired against him, that would not prove collusion for purposes of his grievance. Also, Kraft’s Patriots were clearly not in the market for a quarterback in March 2017. League MVP Tom Brady was the starter with the talented Jimmy Garoppolo and Jacoby Brissett as the first and second backups, respectively.
Yet if Kaepernick could prove that Trump encouraged or even warned owners—like Kraft—to not sign the quarterback and to tell other owners not to sign him as well, Kaepernick would be more able to show that owners had a reason to conspire against him. As President of the United States, Trump wields enormous power over any business. He has also spoken critically about tax advantages that some NFL owners receive on their stadium deals. Further, Trump has implied that tax laws ought to be changed to take away this advantage. Trump is also capable of impacting businesses and their stock prices through one mere tweet.
If Kraft, an influential owner, became convinced that Kaepernick returning to the NFL would prove problematic for NFL owners because of Trump’s likely reaction, Kraft talking about his state of mind back in March 2017 would be relevant to Kaepernick’s grievance.
Kraft’s participation in the October 2017 meeting at NFL headquarters
As detailed in April, an audio recording from an October 2017 meeting of approximately 30 NFL owners, players and league executives indicated that NFL owners were worried about Trump’s power to impact the NFL and its teams, and his willingness to do so over the national anthem protests.
During the meeting, Kraft was sharply critical of Trump. Kraft openly worried that, “The problem we have is, we have a president who will use that as fodder to do his mission that I don’t feel is in the best interests of America. It’s divisive and it’s horrible.” This was not the first time Kraft expressed disapproval about Trump in regard to the national anthem. In September 2017, Kraft wrote, “I am deeply disappointed by the tone of the comments made by the President” regarding players who engage in a form of protest during the national anthem.
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Attorneys for Kaepernick likely asked Kraft about the October meeting and whether owners agreed that the longer Kaepernick stayed out the NFL, the less likely Trump would seek to harm the NFL and its owners. If Kraft indicated that owners engaged in such discussions, Kaepernick’s grievance would be strengthened.
Kraft’s advocacy for Meek Mill
Kraft was a vocal advocate for Meek Mill while the rapper was incarcerated in a Pennsylvania prison for a probation violation. Last month Kraft even visited Mill in prison. At the time, Kraft reflected, “It’s just sad. This guy is a great guy. Shouldn’t be here.” Kraft added: “It makes it clear to me we have to do something with criminal justice reform.”
Kraft may have been asked by Kaepernick’s attorneys if his views about social justice in prison reform are in any way connected to his views about Kaepernick and allegations that the league has “blackballed” Kaepernick. Attorneys for Kaepernick would prefer that Kraft say, in so many words, that the league has its own issues with social justice. Such an acknowledgment could make Kaepernick’s grievance more plausible in the eyes of Burbank.
Kraft’s relationship Roger Goodell
One key issue in all of the Kaepernick depositions is the manner in which the league makes decisions. Kraft, who has owned the Patriots since 1994, is intimately familiar with NFL decision-making. The 76-year-old billionaire is considered one of the league’s most influential owners. He has served on several major league committees, including the finance committee and the management council executive committee. His franchise—which has won five Super Bowls since 2002—has been viewed as the best in the NFL so far in the 21st century.
Kraft also has a unique perspective in that his relationship with NFL commissioner Roger Goodell has been very strained at times. This was most apparent during Deflategate. Kraft is unlikely to be an owner who would rubberstamp the wishes of Goodell and is an owner who would likely push back against Goodell when he deems it appropriate.
To the extent Kaepernick believes that the NFL has directed teams on the question of signing Kaepernick, attorneys for Kaepernick will want to know how teams receive guidance from the league and Goodell. Kraft would certainly be aware of that dynamic and be able to compare it to how teams were influenced by Goodell’s predecessor, Paul Tagliabue, during Tagliabue's tenure.
It will be interesting to see what exactly is obtained through the depositions of Kraft and other leading figures in the NFL. It’s clear that Mark Geragos, Ben Meiselas and other attorneys for Kaepernick believe they can—and will—prove collusion. We’ll find out if that proves right.
Michael McCann is SI’s legal analyst. He is also the Associate Dean for Academic Affairs at the University of New Hampshire School of Law and co-author with Ed O'Bannon of the new book Court Justice: The Inside Story of My Battle Against the NCAA.
