Labor / Employment

Could Colin Kaepernick Kill The NFL CBA?

It's a hail mary, but Kaepernick could win the bigger game.

By The Legal Blitz  
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This Sunday the Green Packers are dressing two quarterbacks in the wake of Aaron Rodgers’ potentially season-ending injury who have completed a whopping 21 NFL passes — combined.

Brett Hundley, who has never started an NFL game before, will take the reins of the offense.  Meanwhile, the Packers backup plan is Joe Callahan, a Division-III quarterback who has never even attempted a pass in a regular season NFL game.

Yet Colin Kaepernick, a Wisconsin native who has led a team to the Super Bowl, remains unemployed.

Frankly, it is every team’s right not to sign Kaepernick regardless of his football skills.  Free speech is not free when it comes to private employers. Actions have consequences. No matter how justified his protest was, NFL owners are a conservative bunch and there is no law or rule precluding them from doing what they are doing.

Except for that pesky collective bargaining agreement and its Anti-Collusion provisions.

Article 17, Section 1 of the CBA  states:

No Club, its employees or agents shall enter into any agreement, express or implied, with the NFL or any other Club, its employees or agents to restrict or limit individual Club decision-making as follows:

(i) whether to negotiate or not to negotiate with any player; . . .

(iii) whether to offer or not to offer a Player Contract to any player; . . . or

(v) concerning the terms or conditions of employment offered to any player for inclusion, or included, in a Player Contract.

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Essentially, if all 32 teams independently arrived at the decision that Kaepernick is persona not grata, then so be it. But if even just two teams made a pact together to both not sign him, then Kaepernick’s official grievance filed earlier this week might have a shot.  (full text of Kaepernick’s grievance below).

But lost amidst the Twitter battles amongst “many fine people” this week over the merits of Kaepernick’s grievance is what happens if he prevails.

Should Kaepernick somehow pull off this Hail Mary, Article 17, Section 16 of the CBA permits the NFLPA to terminate the entire CBA in the event of a single instance of collusion.  Specifically, the CBA provides that

The NFLPA shall have the right to terminate this Agreement, under the following circumstances:

(a) Where there has been a finding or findings of one or more instances of a violation of Section 1 of this Article with respect to any one NFL season which, either individually or in total, involved five or more Clubs and caused injury to 20 or more players; or

(b) Where there has been a finding or findings of one or more instances of a violation of Section 1 of this Article with respect to any two consecutive NFL seasons which, either individually or in total, involved seven or more Clubs and caused injury to 28 or more players. For purposes of this Subsection 16(b), a player found to have been injured by a violation of Section 1 of this Article in each of two consecutive seasons shall be counted as an additional player injured by such a violation for each such NFL season; or

(c) Where, in a proceeding brought by the NFLPA, it is shown by clear and convincing evidence that 14 or more Clubs have engaged in a violation or violations of Section 1 of this Article causing injury to one or more NFL players.

(d) In order to terminate this Agreement:

(i) The proceeding must be brought by the NFLPA;

(ii) The NFL and the System Arbitrator must be informed at the outset of any such proceeding that the NFLPA is proceeding under this Section for the purpose of establishing its entitlement to terminate this Agreement; and

(iii) The System Arbitrator must find that the Clubs engaged in willful collusion with the intent of restraining competition among teams for players.

Part (c) is the clause that applies to Kaepernick. He must show by “clear and convincing evidence” that nearly half of the league colluded against him. Two teams colluding is enough to prevail, but if he wants to kill the CBA, he must show at least 14 teams colluded.

Unfortunately for him, teams simply refusing to meet with him or even sign him is not enough to meet his burden of proof.  Article 17, Section 6 specifically states that “The failure by a Club or Clubs to . . . negotiate, make offers, or sign contracts . . . shall not, by itself or in combination only with evidence about the playing skills of the player(s) not receiving any such offer or contract, satisfy the burden of proof.”

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So Kaepernick has to come up with some significant evidence of collusion by at least 14 teams.  That is a lot of dumb GMs leaving a paper trail of collusion. Crazier things have happened, but don’t put your money it.

Although Kaepernick might want to destroy the CBA, and many other players who have suffered because of the poor job the NFLPA did in negotiating it, there is even one more insurmountable hurdle often overlooked by the sports media.

Part (d)(i) mandates that to terminate the CBA, the “proceeding must be brought by the NFLPA.”  Here, Kaepernick retained renowned celebrity attorney Mark Geragos to bring his grievance, likely because the union wanted nothing to do with it.

Without the NFLPA signing on, the CBA will stand. Despite Donald Trump’s wishes, though, Kaepernick’s legacy of kneeling will likely never go away.

Steve Silver is a former sports reporter for the Las Vegas Sun and is now a lawyer in Portland, Maine. You can reach him at steve@thelegalblitz.com or on Twitter@thelegalblitz.

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