Free-agent quarterback Colin Kaepernick has filed a grievance under the NFL’s collective bargaining agreement accusing the league’s owners of colluding to exclude him from the NFL.
Kaepernick’s legal team shared a statement explaining the filing Sunday.
“If the NFL (as well as all professional sports leagues) is to remain a meritocracy, then principled and peaceful protest—which the owners themselves made great theater imitating weeks ago—should not be punished and athletes should not be denied employment based on partisan political provocation by the Executive Branch of our government,” the statement reads. “Such a precedent threatens all patriotic Americans and harkens back to our darkest days as a nation.”
From Colin Kaepernick's legal team. Explaining his collusion grievance pic.twitter.com/j8zEii7iwx— Jason La Canfora (@JasonLaCanfora) October 15, 2017
The NFLPA responded with a statement saying it will support Kaepernick, though will let Kaepernick’s advisers take point on the process. Kaepernick is being advised by high-profile attorney Mark Geragos, whose past clients include Michael Jackson, Winona Ryder, and Chris Brown, among other celebrities.
NFLPA Statement on Colin Kaepernick Collusion Grievance: pic.twitter.com/TIJXSe2XFg— Adam Schefter (@AdamSchefter) October 16, 2017
Kaepernick declined a player option in March after the 49ers informed him they were planning to cut him because of his salary, and he’s remained unsigned since. His grievance is filed under Article 17 of the CBA, which states that two or more teams cannot enter into an agreement, either explicitly or implicitly, to refuse to negotiate with a player. However, multiple teams each individually deciding not to sign a player is allowed. Within that distinction is likely where the fate of the grievance lies.
It is widely believed that Kaepernick is unemployed because of his protests for social justice. Although other reasons have been offered, they’ve been largely discredited. (In July, commissioner Roger Goodell said, “The clubs are making those individual evaluations.”) Kaepernick began kneeling during the national anthem in 2016 to protest police brutality. His form of protest spread across the league earlier this season after President Donald Trump said any “son of a bitch” who kneels during the anthem should be fired. NFL owners have scrambled to contain the protest—most notably Cowboys owner Jerry Jones, who warned his players that “disrespecting” the flag will result in them being benched.
Kaepernick, now 29, nearly led the San Francisco 49ers to a victory in Super Bowl XLVII, and at the time he was one of the highest-profile players in the league. More than three dozen quarterbacks have been signed since Kaepernick hit free agency. The Ravens and Dolphins passed on signing Kaepernick after their starting quarterbacks sustained injuries early in training camp, while the Titans signed Brandon Weeden after starter Marcus Mariota was injured early in the season.
“As a general matter in sports, collusion occurs when two or more teams, or the league and at least one team, join to deprive a player of a contractually earned right,” wrote Sports Illustrated’s Michael McCann. Kaepernick, however, will have to do more than point out that he’s received worse treatment than his peers.
A neutral arbitrator rules on NFL collusion grievances, but collusion must be proven by a "clear preponderance of evidence" (a high burden).— Michael McCann (@McCannSportsLaw) October 15, 2017
Evidence of collusion will be the key to a successful case. The NFL has faced collusion accusations before, most recently in January 2011 when the NFLPA filed collusion charges against the league alleging that owners conspired to deflate player salaries artificially. The NFLPA lost the case four years later when a judge ruled it could not prove the accusations.
This piece has been updated after publication.