As we enter the eleventh week of the NFL season, former quarterback Colin Kaepernick, who has remained a free agent since March 2017, continues to play an active role off the field. Prior to the start of the season, arbitrator Stephen A. Burbank denied the NFL’s request to dismiss Kaepernick’s labor grievance against the League, allowing his case to proceed to a full hearing. Shortly thereafter, Kaepernick was selected to be the face of Nike’s 30th anniversary of its “Just Do it” Campaign alongside several sports superstars including LeBron James and Serena Williams.
Kaepernick’s labor grievance, which was filed in October 2017, alleges that the NFL and its teams have colluded to keep him out of the League due to his role in instigating player national anthem protests. Kaepernick claims that such collusive conduct violates Article 17, Section 1 of the Collective Bargaining Agreement (“CBA”) between the League and the players’ union, which states that “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” an individual club from negotiating with or offering a contract to a player or free agent.
Kaepernick’s hearing, which is expected to take place in the coming months, will be similar to a trial. The Federal Rules of Evidence will apply, and both parties will be permitted to provide testimony and call witnesses. To prevail, Kaepernick has the burden of proving by a clear preponderance of the evidence that (1) at least two teams, or one team and the NFL, worked together to prevent him from playing in the League in violation of the CBA; and (2) such conduct caused him to suffer economic injury. If Kaepernick is able to obtain a ruling in his favor, the arbitrator is entitled to award Kaepernick compensatory damages (i.e., the amount by which he has been injured by the violation) as well as additional damages that are similar to the concept of punitive damages under U.S. law. However, the CBA does not provide the arbitrator with the authority to reinstate Kaepernick on the 49’ers, or to require any NFL team to hire him.
While it is unclear whether Kaepernick himself will play again in the NFL, other players who have participated in protests continue to remain on active rosters. Eric Reid, Kaepernick’s former teammate and the first player to join Kaepernick in protest, signed a one year contract with the Carolina Panthers on September 27 after remaining a free agent for six months. Reid, like Kaepernick, has filed a collusion grievance against the NFL and its owners. Reid, through the players’ union, had also filed a grievance against the Cincinnati Bengals, who hosted Reid during a free agent workout this offseason. Reid’s grievance alleged that, during his offseason visit, the Bengals asked Reid whether he intended to kneel during the national anthem and chose not to sign Reid because of his response. On October 23, an arbitrator denied Reid’s grievance, finding that the Bengals’ management was within its rights to ask Reid if he intended to continue to kneel during the anthem. Meanwhile, Reid has continued to kneel during the anthem this season, and his collusion grievance against the NFL is still pending.
From a labor perspective, it will be interesting to observe how Kaepernick’s and Reid’s collusion grievances proceed. Although the two are asserting similar claims, their circumstances are quite different, as Reid is an active player while Kaepernick is not. Additionally, because Kaepernick has already prevailed against the NFL’s attempts to dismiss his grievance, Kaepernick is likely to have a hearing first. Kaepernick’s hearing may therefore set standards for the way in which future collusion grievances are heard and decided.