Sports

Colin Kaepernick Settled His Grievance, Jay-Z Is Just Taking The Money

People who are comparing Kaepernick's settlement to Jay-Z's business deal need to step all the way back.

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Colin Kaepernick (Photo by Streeter Lecka/Getty Images)

There seems to be some confusion about the difference between Colin Kaepernick settling his collusion grievance with the National Football League before an arbitrator could rule on the merits, and Jay-Z allowing the NFL to paint itself in Hovaface in exchange for some Super Bowl money. The mischaracterization seems to be: Kaep “took the money” and Jay-Z took the money, so it’s all the same and so now let’s get READY FOR SOME FOOTBAW!!!

Here’s wide receiver Dez Bryant stumbling into the confusion:

You see this a lot from people who don’t understand how the legal system works. In the common parlance, “settlement” connotes “weakness.” You “settle” when you can’t get what you “really” want. You “settle” when somebody names your price. You “settle” when you punt on 4th-and-1 when you are losing late in the game (which, honestly, is pathetic). Winners win, losers settle.

Thinking that way is not Dez’s fault. He went to school to learn how to catch footballs, I went to school to learn how to debate the definition of a “catch” into total absurdist obfuscation. I got you, Mr. Bryant.

Simply put, the colloquial understanding of “settlement” has no place in the law. Many aspects of the legal system are designed, specifically, to encourage legal settlements. A legal settlement is not an admission of defeat; it’s not “selling out.” It’s just the outcome the system is designed to produce. And, of all of those designs, none work as well as “forced arbitration.” Forced arbitration is entirely about making people settle their grievances before an arbitrator makes an “all or nothing” ruling.

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It’s that forced arbitration process that Kaepernick’s collusion grievance was subjected to. Let’s start with the obvious: Kaepernick accused all 32 NFL teams of colluding to keep him out of the league. However, in order to “sue” the NFL for collusion, the only thing Kaepernick could legally do was file a grievance and subject himself to arbitration. That was the only process available, because that’s what is laid out in the collective bargaining agreement between the NFL and the NFL Players Association. A football player cannot just sue the NFL in civil court, without first going through this process. That’s just how the law works. Kaepernick didn’t “give up” his right to sue the NFL; the Player’s Association gave up that right for him, and there was nothing he could reasonably do about it.

Kaepernick filed his grievance, under the terms of the NFL collective bargaining agreement, and that meant his case would be heard by an arbitrator. Think of an arbitrator like a guy whose only tool is a hammer. If you have some exposed nails, it’s going to work out. But if you have any other problem, you might want to fix it yourself before the guy with a hammer shows up and starts knocking things over.

Over the course of the arbitration, it appears that Kaepernick and his legal team were able to bring enough evidence to light to reasonably support their claim that the NFL colluded against him. We don’t know what that evidence was, because arbitration proceedings are secret. Again, this is the legal system favoring a process where parties can settle without having to “admit” any fault, as opposed to a process where parties are boxed into defending embarrassing evidence.

Understand, collusion cases are notoriously hard to “prove.” How can you prove why a thing didn’t happen? It’s almost like trying to prove a negative. Still Kaepernick and his team got it done. The NFL collective bargaining agreement is notoriously crappy for the players. Kaepernick, and fellow NFL player Eric Reid, filed their grievance in October 2017. In August 2018, the court dismissed the NFL’s motion for summary judgment. This was crucial. It meant that, according to the arbitrator, Kaepernick and Reid had made enough of a showing that collusion might have happened that his legal team could continue gathering evidence and making their case. Surviving the motion for summary judgment was a major victory for the players.

That’s also why the NFL went into settlement mode. A ruling in the players’ favor would have made Kaepernick and Reid eligible for treble damages (that’s all the money they would have made, times three). Plus the arbitrator’s ruling would have included likely damaging details about the NFL’s attempts to blackball Kaepernick. There may have been calls for complicit owners to sell their teams. NFL Commissioner Roger Goodell could have easily been fired for allowing such a public relations disaster to occur on his watch.

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OR… the players could have gotten NOTHING. In order to encourage settlements, the arbitrator in this case was only empowered to rule completely on the side of the players, or completely on the side of the owners. There was no in-between. There was no “moderation.” Either Kaep and Reid get everything they want, or they get nothing.

Except that even if they won, Kaepernick and Reid wouldn’t have gotten everything they wanted. What they wanted was to play football. These men have any extremely short amount of time where they are physically capable of doing that. Reid signed during the proceedings, but was also trying to get a new, lucrative contract. Kaepernick just wants a damned try-out. Even if they had won their arbitration and “proved” that the NFL colluded against them, the court had no power to force the NFL to sign them. All the arbitrator could do, all it could ever do, was punish the NFL for its possible collusion. That punishment was always going to be doled out in dollars and cents, not right and wrong.

That’s why the players took the settlement offer once the NFL made a reasonable one. They had taken their case as far as it could go without it being subjected to the random wheel of an all-or-nothing judgment. Even in defeat, the NFL would not have “admitted wrongdoing.” It would not have been forced to re-hire Kaepernick or allow other players to protest or kneel for social justice. It just would have paid Kaepernick $X million dollars, instead of $Y million dollars. The larger point, that the NFL did Kaep dirty, should have been proved in the court of public opinion when the NFL lost its motion to dismiss. Winning the heart and mind of an arbitrator is, you know, kind of an arbitrary standard in a system where the arbitrator’s primary role is to scare parties into settlement negotiations.

Every lawyer on the planet would have advised Kaepernick to take the settlement. Only a very bad client would ignore this advice.

Now that you understand what Kaepernick did, and why, let us turn our attention to Shawn Corey Carter. From Vox:

On August 13, the NFL announced that it was entering a partnership with Roc Nation, the entertainment company founded and led by rapper and mogul Jay-Z. The deal, which has reportedly been in the works for several months, means that Roc Nation will now help “advise on selecting artists for major NFL performances like the Super Bowl.”

While the deal effectively gives Jay-Z a major role in developing one of the most-watched concerts in the country, it also includes a social justice partnership between the rapper and the NFL. Roc Nation, the NFL adds, will play an important role in the NFL’s recently launched “Inspire Change” initiative, a collaboration between the NFL and the Players Coalition, a group of NFL players seeking to advance social and racial justice. The initiative focuses on three causes in particular: “education and economic advancement; police and community relations; and criminal justice reform.”

Both parties say the deal is an important step forward in indicating the NFL’s strong commitment to helping marginalized communities. “With its global reach, the National Football League has the platform and opportunity to inspire change across the country,” Jay-Z said in a statement this week. “This partnership is an opportunity to strengthen the fabric of communities across America.”

Comparing what Kaepernick did to what Jay-Z is doing is unmitigated BS. Kaepernick took the NFL to court, in the only manner he was legally allowed to do, to highlight their unfair labor practices towards black people. Jay-Z is making a deal to supply the NFL with more black labor. Kaepernick and Reid took the NFL to the bank as punishment for their mistreatment of them. Jay-Z is making bank off the “social awareness” that Kaepernick shamed the NFL into showing. Kaepernick settled to avoid a time-consuming legal process that could have left him zero dollars for the ruins of his NFL career. Jay-Z made a deal that allows him, but not Kaepernick, to capitalize off of the ruins of Kaepernick’s NFL career. Kaepernick did the right thing by following all the rules to demand accountability for the NFL’s actions. Jay-Z is doing the wrong thing to help the NFL avoid accountability.

I reached out to Kaepernick’s lawyer, Mark Geragos — who did the hard legal work of actually fighting the NFL on Kaepernick’s behalf, something that Jay-Z is evidently no longer interested in doing — for his thoughts on the Jay-Z deal. He said simply: “That was cold-blooded.”

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.

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