The 49ers and Panthers offering Eric Reid a contract—and Carolina completing the deal—won't disprove the former All-Pro safety's collusion case against the NFL.

By Michael McCann
September 29, 2018

Nearly five months after he joined Colin Kaepernick in filing a collusion grievance against the NFL, Eric Reid has joined the roster of an NFL team. The Carolina Panthers, under new owner David Tepper, signed the 26-year-old former San Francisco 49ers starting safety to a one-year contract on Thursday. The Panthers sought Reid after the team placed starting safety Da'Norris Searcy, who had suffered two concussions over a five-week stretch, on injured reserve. As explained below, Reid’s signing does not compel him to drop his grievance nor does it necessarily impact the grievance. Likewise, Reid’s signing poses no tangible effect on Kaepernick’s grievance, the filing for which will reach its one-year anniversary on Oct. 15.

Understanding Reid’s claim

While Reid lacks the profile of Kaepernick, his story bears resemblance to that of his more celebrated former 49ers teammate. Most crucially, both players contend that teams have conspired to deprive them of a contract offer or the chance to negotiate with a team. Such a conspiracy, if proven, would violate the Article 17 of the NFL’s collective bargaining agreement. Article 17 is the anti-collusion provision of the CBA. It expressly prohibits two or more teams, or the NFL and at least one team, from entering into any express or implied agreement to restrict or limit individual team decision-making with respect to signing a player. Teams, Kaepernick and Reid charge, have schemed against them on account of their kneeling during the playing of the national anthem. Kaepernick began his kneeling while a teammate of Reid in 2016. Soon thereafter, Reid and other NFL players partook in identical or similar forms of protest.

Although Kaepernick has not played since the 2016 season, Reid continued to play for the 49ers in 2017. Reid, in fact, was a very productive player for the 49ers beginning almost immediately after they drafted the 6'1", 213-pound former LSU star with the No. 18 pick in the 2013 NFL draft. He started 69 of the 70 games between the 2013 and 2017 seasons, and as a rookie was named first-team All-Pro, selected to the Pro Bowl and earned a spot on the Pro Football Writers Association All-Rookie team. By all accounts, teammates and coaches regard Reid as a hard worker, leader and good citizen. To that end, Reid has avoided any legal troubles and, save for the kneeling, has steered clear of conduct that triggers public debate.

Though Reid remained a starter with the 49ers in the 2017 season, Reid’s role diminished somewhat. This occurred while fellow 49ers safeties Jimmie Ward and Jaquiski Tartt took on more prominent roles in the defense. Still, when Reid became a free agent in March, he reasonably expected to draw interest from teams in need of safeties. Instead, he found himself largely ignored. Even more telling, Reid reasoned, was the manner in which potential suitors treated him. When Reid visited the Cincinnati Bengals in April, Bengals owner Mike Brown repeatedly challenged him about his decision to engage in protest and also admonished Reid that the Bengals intended to require players to stand for the anthem.

NFL
Panthers Signing Eric Reid Likely Would Not Have Happened If Jerry Richardson Still Owned the Team

Reid’s unwelcomed experience as a free agent led the NFLPA, on Reid’s behalf, to file a non-injury grievance in May. This NFLPA grievance, which is separate from Reid’s collusion grievance, charges that an unnamed team “appears” to have based its decision to not sign Reid on his expressed refusal to comply with a potential team policy that would have required players to stand during the national anthem. A couple of weeks later, the NFL tentatively authorized teams to require, upon potential penalty of fines or suspensions, that its players stand for the anthem—an authorization that, not long thereafter, led the NFLPA to file a non-injury grievance on behalf of all players against the NFL. The league has since tabled any changes to its anthem policy pending negotiations with the NFLPA.

Reid remained without a team over the summer. The only team that reportedly offered him a contract was the 49ers. In April, according to the NFL Network’s Mike Garafolo, the 49ers offered Reid a one-year contract, possibly for the league’s minimum salary for a player of Reid’s experience ($790,000). Reid, who earned $5.7 million in 2017, declined the reported offer in hopes of securing a more lucrative multi-year deal elsewhere. Subsequent reporting by Can Inam of the Mercury News indicates that the 49ers did not formally extend an offer to Reid in April.

Whether or not the 49ers offered Reid a deal in April and whether or not it was for the league minimum, no other team offered Reid a contract, of any length and of any amount money, until the last week when two teams stepped up to the plate. According to Jim Trotter of the NFL Network and Eric Branch of the San Francisco Chronicle, the 49ers extended Reid a contract shortly before the Panthers extended him one. Reid elected to sign with the Panthers, who ESPN’s Adam Schefter reports will pay Reid a base salary of $1 million. Should he reach incentives, Reid can earn up to $2 million for the Panthers in 2018.

Where Reid’s claim goes from here

Reid’s collusion grievance will continue as he plays for the Panthers. His grievance, which began in May, is in an earlier stage than that of Kaepernick, whose grievance began in October 2017. Reid’s grievance is currently in “discovery” where his attorneys, Mark Geragos and Ben Meiselas (who also represent Kaepernick), are able to interview team and league officials under oath and also obtain electronic evidence, such as emails and texts.

Kaepernick’s grievance is past the discovery stage: in August, neutral arbitrator and University of Pennsylvania Law School professor Stephen Burbank—who presides over collusion grievances—rejected the NFL’s request for summary judgment. Burbank’s rejection meant that through evidence or testimony, or some combination of the two, Kaepernick raised a genuine issue of material fact as to whether he was victimized by collusion. In other words, Kaepernick established that his claim of collusion is more than mere conjecture or abstract theory. Instead, it is based on a tangible finding or findings. Most likely this fall or winter, Burbank will host a trial-like hearing in which NFL owners, league officials and Kaepernick testify. Kaepernick can only prevail if he proves by a “clear preponderance of the evidence” that collusion occurred.

The fact that the 49ers and Panthers offered Reid contracts in recent days doesn’t disprove Reid’s case. Although the burden of persuasion to prove collusion is relatively challenging—a “clear preponderance of the evidence” is substantially higher than the civil lawsuit standard of “preponderance of the evidence” or “more likely than not”—only a relatively small conspiracy is needed. Reid, like Kaepernick, must show that two or more teams, or the league and at least one team, conspired. Stated differently, 30 or 31 teams could have had nothing to do with any collusion against Reid and yet Reid could still prevail if just one team and the NFL, or two teams, were involved. In a league with 32 teams there are millions of potential combinations. Only one proven combination is required for Reid to win. Last week I explained this point with respect to the possibility of Kaepernick signing with a team and its impact on his collusion grievance:

Just take the Miami Dolphins. Assume, for purposes of illustration, that the Dolphins colluded with between one and 31 teams against Kaepernick. The Dolphins could have colluded with the New York Jets; or with the Buffalo Bills; or with the Jets and the Bills; or with the Bills and the Dallas Cowboys; or with the Jets, Bills and the Cowboys; or with the Jets, Bills, Cowboys and the Detroit Lions; or with the Jets, the Bills, the Cowboys, the Lions and the Kansas City Chiefs; or with the Lions and the Cowboys but no others ... and so on and so on. The same kind of multi-factor analysis could be applied to any other team, and any one of the resulting combinations, if proven, would constitute actionable collusion. Also, all 32 teams, plus the NFL, remain vulnerable to a finding of a collusion: Arbitrator Stephen Burbank, in his decision to reject the NFL’s request for summary judgment, declined to remove any teams or the NFL itself from Kaepernick’s grievance.

Albeit unlikely, it's possible that the Panthers and 49ers are part of Reid’s alleged conspiracy. Reid filed his grievance in early May. His filing was obligated to comply with Article 17, which instructs that a grievance must be brought within 90 days of the time when the player knows, or reasonably should have known, that he was victimized by collusion. Reid’s alleged collusion, then, most likely took place in February, March or April. Hypothetically, the Panthers could have colluded against Reid while Jerry Richardson—a sharp critic of protesting players—owned the team but stopped doing so after Tepper took over in July. To that point, SI’s Jonathan Jones explains that the Panthers probably would not have signed Reid if Richardson was still the owner. Richardson sold the Panthers seven months after his alleged harassment of female employees and use of a racial slur was exposed in an SI investigative report by Jon Wertheim and Viv Bernstein.

The challenge of proving damages in the marketplace of free-agent safeties

It will likely be in 2019 when it is determined if Reid’s grievance advances past summary judgment (assuming Reid doesn’t voluntarily drop or settle the grievance). If Reid’s grievance advanced past summary judgment, and if he wins the hearing, he would be awarded compensatory damages for the amount of money Reid would have earned but for collusion. Although Reid ultimately signed a contract worth between $1 million and $2 million with the Panthers, his attorneys might be able to prove that Reid would have secured a much more lucrative contract in the absence of collusion. Reid would receive non-compensatory (punitive) damages of twice the amount of compensatory damages. Therefore, if Reid could prove that he would have earned an additional $750,000 but for collusion, he would be awarded $2.25 million ($750,000 in compensatory damages plus twice the amount of compensatory damages, meaning $1.5 million).

One challenge for Reid in terms of proving damages is that arguably comparable free agents in 2018 landed less lucrative contracts than they had anticipated and signed deals of similar values to the amount Reid secured with the Panthers. Tre Boston, for example, was, like Reid, a 26-year-old free agent safety in 2018. Boston had snagged five interceptions and recorded 56 tackles during the 2017 season. Reid, by comparison, had only one interception and recorded 52 tackles that year (albeit in three fewer games than Boston). In July, Boston signed a one-year deal with the Arizona Cardinals reportedly for $1.5 million, an amount that includes a $1 million base and $300,000 signing bonus. Boston had previously described an offer from the Cardinals as “very, very disrespectful.”

Or take Kenny Vaccaro. He is arguably a closer comparison to Reid given that both he and Reid play strong safety whereas Boston is more of a free safety. Vaccaro entered the NFL in the same draft and in almost the same draft spot as Reid—Vaccaro was the 15th overall pick of the 2013 NFL Draft while Reid was the 18th overall pick. Both men were born in 1991 and should be in the primes of their careers. During the 2017 season, Vaccaro played 12 games (one fewer than Reid) and intercepted three passes and recorded 48 tackles—stats that are similar, if not slightly better, than those of Reid, who had one interception and 52 tackles. Vaccaro is also similar to Reid in that he has sat during the anthem, though Vaccaro has not filed a collusion grievance. Like Boston, Vaccaro’s free agency led to an underwhelming conclusion: he signed a one-year deal with the Tennessee Titans for $1.5 million.

The experiences of Boston and Vaccaro do not disprove Reid’s case. They merely highlight the challenge Reid faces. Sometimes players sign for less than they expected and sign for less than what they “should have” received in a typical market. To that end, the NFL will likely assert that since players who are similar to Reid signed similar contracts to the one signed by Reid, no collusion likely occurred. Perhaps the market for free agent safeties has become less lucrative, possibly because teams place greater value in other defensive positions than they had in the past. Reid will need to rebut such a defense with evidence—be it impeaching testimony or damning electronic communications of owners or team officials. 

Reid will also need to explain how he ought to have received a contract of a higher value than the one he landed with the Panthers. He might cite the contract signed by the injured strong safety he replaced: in March, the Panthers signed the 29-year-old Searcy, who started only six of the 16 games he played for the Tennessee Titans in 2017 and produced one interception and 12 tackles during that time, to a 2-year, $5.7 million contract. Reid might insist that if Searcy, an older and less accomplished player, could secure such a rewarding contract, then Reid would have done at least as well but for (alleged) collusion.

Reid’s signing does not change Kaepernick’s collusion grievance

One might surmise that if Reid signed a contract with a team, then Kaepernick’s theory of exclusion on account of his kneeling is somehow weakened. After all, if teams detested kneeling players so much, then Reid would not have been signed.

The logic of that supposition doesn’t hold water.

Kaepernick is not only an entirely different player than Reid, but he is an entirely different public figure. Kaepernick is clearly the most identifiable player in the anthem controversy and its connections to different social and political movements. He has legions of supporters and legions of critics, notably including the President of the United States. Put bluntly, Kaepernick is far more polarizing than Reid. Any team that signs Kaepernick knows that he would immediately become one of the most, if not the most, followed players on the team. He would attract considerable and continuous media attention, even if he were the backup quarterback. This is part of the reason why Nike has made Kaepernick the primary face of the company’s 30th anniversary “Just Do It” campaign: Kaepernick, along with players like Tom Brady and Odell Beckham, Jr., is one of the most recognizable players to the American population. Remarkably, this is true even though Kaepernick hasn’t played in the NFL for two years.

Reid, in contrast, is simply not that well known. He is a solid NFL player who, like many other solid NFL players, is not especially identifiable to the general public or even to fans of other teams. Reid, like other kneeling and sitting players, also joined the anthem protests after Kaepernick. If one finds the protests courageous, then the most courageous player is Kaepernick; if one finds the protests offensive, then the most offensive player is Kaepernick. The players who followed Kaepernick are not nearly as laudable or disagreeable. They are, for good or bad, followers.

The MMQB will keep you updated on both Reid and Kaepernick’s grievances.

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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