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  • Nike's ad campaign centered around Colin Kaepernick has garnered plenty of attention, but how much of an effect could it have on his collusion grievance againce the NFL?
By Michael McCann
September 05, 2018

It has been an active stretch for developments relating to Colin Kaepernick’s collusion grievance. As detailed on The MMQB last Thursday, arbitrator Stephen Burbank has rejected the NFL’s request for summary judgment. This means that Kaepernick has convinced Burbank that there is a genuine issue of material fact as to whether his absence from the NFL reflects collusion. While advancing past summary judgment does not necessarily mean that Kaepernick will win the grievance, it confirms that his grievance is based on some degree of actual evidence and/or testimony rather than mere theory or hypothesis. Kaepernick will face off against the NFL in a trial-like hearing later this year.

In the last 48 hours additional developments have spurred questions about Kaepernick’s grievance. Most notably, Nike announced that Kaepernick will be the primary face of the company’s 30th anniversary “Just Do It” campaign. The company contends that Kaepernick, who has been under contract to Nike since 2011, is an inspirational athlete who embodies “the power of sport to help move the world forward.” For his part, Kaepernick—who has been without an NFL contract for now 553 days—tweeted an image of his face with a Nike logo and the accompanying statement “Believe in something, even if it means sacrificing everything. #JustDoIt.”

Some have wondered whether Kaepernick becoming the center of Nike’s campaign could derail or hinder his collusion grievance. As noted by commentators on Twitter, if an NFL team employed Kaepernick, he would seemingly be a less credible example of an athlete who has “sacrificed everything.” In that sense, Kaepernick’s exclusion from the NFL has likely better positioned him to land a coveted placement in Nike’s hierarchy of player endorsements for this particular advertising campaign. Perhaps the exclusion has also provided Kaepernick with an opportunity to increase his earnings with Nike.

Could the NFL attempt to convince Burbank that Kaepernick’s newfound prominence with Nike ought to prevent his grievance from moving forward? Alternatively, could Kaepernick’s relationship with Nike mitigate any damages the NFL or its teams would owe Kaepernick should the 30-year old quarterback prevail in the grievance?

Burbank would surely say “no” to the first question and he would likely say “no” to the second question.

For starters, Kaepernick’s endorsement contract and other business dealings outside of the NFL are not relevant for determining whether he was victimized by collusion. Under Article 17 of the collective bargaining agreement, a finding of collusion requires that two or more NFL teams, or the NFL and at least one team, conspired against Kaepernick in a way that deprived him of a collectively bargained right. Article 17 makes clear that the question of whether collusion occurred is limited to an assessment of conduct by NFL teams and the NFL itself. To that end, the applicable question is whether there was an agreement, express or implied, to restrict or limit a team’s decision-making on whether to negotiate with Kaepernick or offer Kaepernick a contract. The universe of relevant facts is thus confined to the owners, executives and employees of the NFL and its teams. In contrast, Kaepernick’s business dealings with third parties, such as his endorsement relationship with Nike and his book relationship with Penguin Random House, are outside the scope of pertinent facts as to whether collusion occurred.

As to damages, Article 17 appears to compute damages based only on how the NFL and its teams damaged the player. Article 17 notes that if a player proves collusion, he would be entitled to compensatory damages and non-compensatory (punitive) damages of two times compensatory damages (in other words, if Burbank concludes that Kaepernick’s compensatory damages are worth $5 million, Kaepernick would receive $15 million since it would be $5 million compensatory + $10 million non-compensatory).

The definition of “compensatory damages” under Article 17 is thus crucial to determining if Nike’s endorsement deal with Kaepernick might offset damages. Article 17 defines compensatory damages as “the amount by which the player has been injured as a result of a violation of Section 1 of the article.” Section 1 refers to teams and/or the league colluding against the player. This definition suggests that damages are structured around how collusion harms the player’s employment in the NFL. To that end, if Kaepernick proves collusion, he presumably lost a chance to sign an NFL contract. He would likely cite contracts of comparable quarterbacks as a means of determining how much money he was denied in NFL earnings.

This narrow definition of compensatory damages does not appear to invite discussion of external or secondary consequences of collusion. That is most likely because such discussion would be inherently speculative. While Kaepernick might have “gained” from his NFL exclusion by landing top billing with Nike and, more generally, by becoming seen as a social crusader, what’s to say he would not have “gained” other off-field opportunities had he played over the last two years? If he signed with a team and played well, Nike might have featured him in other kinds of advertising campaigns. He might also have landed other types of endorsement and business opportunities. It would be interesting to see if and how Burbank addresses this issue. Chances are he would confine his analysis to the specific wording of Article 17 and steer clear of speculation.

On Tuesday, other parties linked to Kaepernick’s collusion grievance weighed in on the Nike campaign. President Donald Trump—whom representatives for Kaepernick contend has swayed NFL owners into colluding against him—and an NFL spokesperson made statements about Kaepernick’s deal with Nike. In an interview with The Daily Caller, Trump criticized Nike for sending a “terrible message.” However, the President also stressed that Nike is a private company that can do whatever it likes. It’s unclear if Nike’s decision to feature Kaepernick or Trump’s critical comments impacted Nike’s stock price, but it slipped 3% on Tuesday. On Wednesday, Trump commented once again on the Nike-Kaepernick campaign, tweeting, “Just like the NFL, whose ratings have gone WAY DOWN, Nike is getting absolutely killed with anger and boycotts. I wonder if they had any idea that it would be this way? As far as the NFL is concerned, I just find it hard to watch, and always will, until they stand for the FLAG!”

As to the NFL, spokesperson Jocelyn Moore appeared to praise the decision of Nike, which has a partnership with the NFL through 2028 to provide teams with game-day uniforms and sideline apparel, as well as Kaepernick himself. “The social justice issues,” Moore noted, “that Colin and other professional athletes have raised deserve our attention and action.”

The fact that Kaepernick is so connected to social justice—both in his actions and now in his endorsement relationship with Nike—is further evidence that he may not be open to a settlement with the NFL (assuming the league offers him money to drop his collusion grievance). In any settlement, Kaepernick would likely demand concessions that go beyond simply being paid. For instance, he might demand that the NFL relax its anthem policy or donate to charities devoted to causes he supports. Given the probable complexities of any settlement, it is more likely that Kaepernick and the NFL will not resolve their dispute and will instead meet before Burbank.

Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.

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