Colin Kaeperneck’s latest accusations against NFL owners of collusion do not meet the NFL’s Collective Bargaining Agreement’s conditions for burden or proof.
Kaepernick’s grievance, filed by attorney Mark Geragos, states:
Respondents NFL and NFL Team Owners have colluded to deprive Mr. Kaepernick of employment rights in retaliation for Mr. Kaepernick’s leadership and advocacy for equality and social justice and his bringing awareness to peculiar institutions still undermining racial equality in the United States.
Further, Respondents have retaliated against Mr. Kaepernick in response to coercion and calculated coordination from the Executive Branch of the United States government.
Kaepernick opted out of his contract with the San Francisco 49ers in March and has not been offered a contract since, despite some consideration by the Seattle Seahawks and the Baltimore Ravens.
“Collusion occurs when two or more teams, or the league and at least one team,” Sports Illustrated explained in March, “join to deprive a player of a contractually earned right. Such a right is normally found in the collective bargaining agreement signed by a league and its players’ association. For example, the right of a free-agent player to negotiate a contract with a team cannot be impaired by a conspiracy of teams to deny that a player a chance to sign.”
According to the CBA, the fact that NFL teams have declined to offer Kaepernick a contract does not prove collusion. Furthermore, a free agent’s “playing skills” do not represent evidence for collusion.
ESPN says that Kaepernick’s grievance is vague and unconvincing, blaming President Donald Trump for coercing NFL owners into withholding offers.
The NFL’s collective bargaining agreement, which governs such disputes, makes clear that the failure to sign a player is not in itself enough to prove collusion. Instead, it must be combined with evidence that teams entered into an agreement, express or implied, to bar the player’s employment.
Here’s the relevant wording of the CBA’s “burden of proof” for collusion:
“The failure by a club or clubs to negotiate, to submit offer sheets, or to sign contracts with restricted free agents or transition players, or to negotiate, make offers, or sign contracts for the playing services of such players or unrestricted free agents, 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 set forth …”
[…] But his grievance, filed by attorney Mark Geragos, does not provide any specific evidence of an agreement to collude. It vaguely references NFL general managers who have cited “directives from NFL owners to not let Kaepernick so much as practice with an NFL team.” It also accuses owners of submitting to the demands of President Donald Trump, whom it terms “an organizing force” in squashing what has become a weekly protest among at least some NFL players.
Geragos, representing Kaepernick, attempts to shirk the legal definition of collusion and the lack of evidence by calling the fact that Kaepernick is out of work “a statistical impossibility.”
He further suggests that evidence isn’t necessary for Kapernick’s case, but the CBA doesn’t make room for “suspicion […] risen to the level of concrete and actual collusion” in satisfying the definition of burden of proof.
In the end, however, Geragos asserts that “the mere suspicion of collusion against Mr. Kaepernick has risen to the level of concrete and actual collusion. It is no longer a statistical anomaly but instead a statistical impossibility that Mr. Kaepernick has not been employed or permitted to try out for any NFL team since the initiation of his free agency period.”
[…] To be clear, none of this is going to accelerate Kaepernick’s return to the NFL. Even if he wins this grievance, the CBA doesn’t require a team to give him a job. Instead, it spells out a process for awarding compensatory damages, at a value to be determined by the arbitrator. The real damage to the NFL could be an exposure of its inner workings via public discovery.
Geragos seems to use Kaepernick’s playing ability as “evidence” that collusion is occurring in the NFL. Yet the NFL’s CBA specifically states that such speculation doesn’t amount to evidence.
It will certainly be an uphill climb for Kaepernick if he wants his grievance to hold any legal weight. Things certainly are not going in his favor right now.