Colin Kaepernick’s multi-year quest to prove that NFL teams conspired to exclude him from the league has ended without a finding.
On Friday, Kaepernick’s attorney, Mark Geragos, tweeted that Kaepernick—who last threw an NFL pass 25 months ago—and Eric Reid have resolved their pending grievances with the NFL. Shortly thereafter the NFL released an identical statement. Terms of the settlement are unknown. The parties have agreed to a confidentiality agreement, meaning any terms or findings from the grievance process are forbidden from disclosure.
As discussed below, either side can spin this settlement as a win. No doubt, it will be spun by Kaepernick’s supporters and his critics alike. In reality, the settlement is more like a draw that underscores the relative strengths and weaknesses for each side. Also, the absence of public knowledge of the terms of the settlement makes classifying it as a “win” or “loss” highly speculative.
A brief timeline of relevant facts that preceded Kaepernick filing his collusion grievance
In August 2016, Kaepernick, who then played for the San Francisco 49ers, began to kneel during the pre-game playing of the national anthem. Kaepernick described his kneeling as a non-violent form of expression designed to raise awareness of social and racial injustices. Kaepernick became both a recipient of praise and a target of hate. His advocates, who included Reid and other players who soon joined him in kneeling, lauded Kaepernick for calling attention to social causes. His critics denounced the kneeling as disrespectful to the country and as damaging to the NFL’s business model.
In 2016 Kaepernick played in 12 games for the 49ers, starting the team’s final 11 games of the season. San Francisco struggled during that stretch, but Kaepernick played reasonably well, throwing 16 touchdown passes against four interceptions, rushing for 468 yards and amassing a QB rating of 90.7. His QB rating was ranked 17th in the NFL and superior to the QB ratings of Philip Rivers, Eli Manning, Carson Palmer and several other starting quarterbacks. While Kaepernick was not at the level of a Tom Brady or an Aaron Rodgers, he was, at least statistically, a “middle of the pack” starting NFL quarterback.
While Kaepernick’s kneeling was a cultural phenomenon during the 2016 season, it didn’t take legal significance until ’17, when on March 3 Kaepernick opted out of his contract with the 49ers and relinquishing a contractual right to $14.5 million in salary. However, it’s unlikely Kaepernick would have received that salary: the 49ers general manager John Lynch planned to cut Kaepernick. By opting out, Kaepernick preempted the 49ers releasing him and gave himself, along with his agents Sean Kiernan and Jeff Nalley of Select Sports Group, more time to find a new team.
Now 714 days later, no new team has surfaced. Kaepernick received no offers in 2017, despite having a stronger ’16 season than the year before and despite several teams clearly needing a quarterback. The closest Kaepernick came to an offer was in the fall of 2017, when the Baltimore Ravens considered extending him one, but according to published reports, ultimately declined.
Explanations for Kaepernick’s failed free agency have included that teams are supposedly unwilling to embrace his mobile style of play, even though several teams use mobile quarterbacks (Marcus Mariota, Deshaun Watson, Lamar Jackson and Josh Allen are among them, and one might argue likely 2018 NFL MVP Patrick Mahomes fits that depiction as well). Other commentators speculate that Kaepernick would only agree to sign with a team as a starter and that such supposed insistence has diminished teams’ interest. The defect with this purported explanation is that it hasn’t been tested: Kaepernick hasn’t turned down an offer to become a backup quarterback because he hasn’t been offered such a chance.
Instead, many have surmised that teams don’t want him because of his kneeling. Either teams philosophically disagree with his behavior or fear that signing him would lead to a sideshow distraction for the team.
Kaepernick’s theory of collusion
On Oct. 15, 2017 Kaepernick, with the assistance of his attorneys Mark Geragos and Ben Meiselas, filed his collusion grievance against the NFL. To prove collusion, Kaepernick needed to establish more than teams deciding to exclude him because they disagreed with his kneeling or his political views. In fact, a team owner or general manager could have openly admitted to not offering Kaepernick a contract because of the anthem without such an admission proving collusion. Collusion, instead, requires cooperation or agreement between at least two teams, or between at least one team and the league, to deprive Kaepernick of the chance to play. A team cannot collude with itself.
Over the first 10 months of the grievance procedure, Kaepernick’s legal team engaged in “discovery.” This refers to neutral arbitrator Stephen Burbank permitting Kaepernick’s legal team to access relevant NFL records and depose owners and executives under oath. NFL commissioner Roger Goodell, Dallas Cowboys owner Jerry Jones, the late Houston Texans owner Bob McNair, New England Patriots owner Robert Kraft and Denver Broncos general manager John Elway were all required to give testimony.
In April 2018, The New York Times reported on leaked recordings from an Oct. 2017 meeting between NFL players, NFL owners and league officials. The meeting made clear that several owners openly worried about President Donald Trump sharply criticizing both players who kneeled and the owners who employed them. Trump—who at different points in the past contemplated buying the New England Patriots and the Buffalo Bills, and who once sued the NFL as part of his involvement in the USFL—has repeatedly complained that NFL owners receive undeserved tax breaks in the construction of new stadiums. In tweets, the President has linked that view with his frustration over the NFL’s response, or lack-there-of, to kneeling players, including one tweet where he warned that the government ought to “change tax law!”
Central to Kaepernick’s theory of collusion is the contention that NFL owners and team officials have conspired to exclude Kaepernick because they are fearful of Trump. Along those lines, there is belief among persons close to Kaepernick that Trump has personally relayed concerns. It has been noticed that Trump began to criticize Kaepernick and owners on March 20, 2017, which is one day after he flew on Air Force One with Kraft (working against that suspicion is the fact that Kraft openly criticized the President over his comments about kneeling players).
Significance of Kaepernick defeating the NFL on summary judgment
Kaepernick’s collusion grievance received significant skepticism and Twitter ridicule. Many scoffed at the idea that teams would plot against a quarterback who led his team to a 2–14 record. Instead, his critics surmised, Kaepernick was simply upset about the lack of offers and, to deflect blame, invented a storyline that blamed others.
That skepticism changed dramatically last August when Burbank denied the NFL’s request for summary judgment. This was a major development, meaning that Kaepernick had persuaded Burbank that he possessed enough evidence sufficient to raise a genuine issue of material fact. In other words, Kaepernick had some evidence, even if the nature of this evidence remains unknown to the public. Also, due to the settlement’s non-disclosure agreement, the nature of this evidence will remain out of public light. In fact, both sides could be sued for breach of contract lawsuit if they divulge the contents. Meanwhile, attorneys in the grievance who breach confidentiality could risk sanction by state bars. That doesn’t mean we can’t speculate about the evidence. Such evidence could be in the form of an admission made during witness testimony (attorneys Geragos and Meiselas have deposed a number of owners, team officials and NFL officials) or perhaps a damning email, text or other correspondence sent by one owner to another.
For the NFL, the summary judgment ruling made the possibility of losing to Kaepernick a legitimate worry. The NFL knew that Kaepernick and his legal team had persuaded Burbank that evidence of collusion was present.
To be sure, Kaepernick still faced an upward climb in proving collusion. Under Article 17 of the CBA, Kaepernick had to prove collusion by (1) a “clear preponderance of the evidence” that collusion occurred and (2) that such collusion caused him economic harm—and this would have been a high standard to meet. Still, the NFL losing on summary judgment informed league officials that Kaepernick’s case was not frivolous and was instead an actual threat.
Why the NFL agreed to settle with Kaepernick (and Reid)
The NFL likely settled for a multitude of reasons.
First, the league may have realized after losing to Kaepernick on summary judgment that it could have lost the entire grievance. Burbank clearly saw “something” adverse to the NFL or else he would have granted summary judgment and tossed out Kaepernick’s grievance. The fact that he didn’t was clearly a worry to the league.
Second, a loss to Kaepernick on the merits would have been a public relations disaster for the NFL. Kaepernick would have shown that at least two teams, or the league and at least one team, had conspired against him. This type of finding would have been construed by media as proving that NFL owners are racially-insensitive or even racist. Kaepernick, for his part, would have been celebrated as a hero while Goodell would have been vilified (I realize many already view him as a villain, but that narrative would have taken on greater momentum). By settling instead, the NFL avoids admitting it did anything wrong. Don’t underestimate the value to the NFL in avoiding saying “we were wrong.” That value was apparent in the concussion litigation settlement and could be true here as well.
Third, a finding that the NFL colluded would have been badly damaging to labor relations between owners and players. The NFLPA would know for a fact that teams had colluded against at least one of its members and perhaps two if Reid was also victimized by collusion. Ask baseball players and the MLBPA how it was impacted upon a finding that MLB owners had colluded against baseball players in the 1980s: the finding caused lasting distrust. Moreover, considering the NFL and the NFLPA still haven’t solved the apparent riddle of how to craft a sensible national anthem policy, the NFL losing to Kaepernick would have emboldened the NFLPA to continue the fight over the anthem.
Fourth, the negative impact that would have been associated with the NFL losing to Kaepernick would have been exacerbated by the fact that Burbank was completely neutral. His decision would have been authoritative and credible. Likewise, the odds that the NFL could have successfully challenged Burbank’s award in federal court were exceedingly slim. Federal law is highly deferential to arbitration awards. It is extremely unlikely that Burbank would have made the kind of fundamental error necessary to undermine his award before a federal judge.
Fifth, the NFL and its teams could have o