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How Would Colin Kaepernick Signing With an NFL Team Affect His Collusion Grievance?

Michael McCann

One of Colin Kaepernick’s attorneys, Mark Geragos, hinted on Thursday that Kaepernick could be signed by an NFL team in the near future. "I would just say, 'Stay tuned' that next week there may be some news,” Geragos expressed in an interview with TMZ Sports. Geragos also left clues that the Oakland Raiders and New England Patriots are plausible destinations for the 30-year-old Kaepernick, who hasn’t played since the 2016 season. During that 2016 season Kaepernick registered a 90.7 QB rating—17th best in the league. It is a rating that would currently place him in the middle of starting QBs and ahead of Russell Wilson, Eli Manning, Matt Ryan and Jimmy Garoppolo, among others. One can credibly deduce that if Kaepernick were uncontroversial and not associated with kneeling during the national anthem, he would have enjoyed opportunities to play over the last couple of seasons. That deduction wouldn’t necessarily prove collusion, however: Even if Kaepernick can conclusively show that a team didn’t sign him because of the anthem controversy, a finding of collusion demands evidence that more than one team acted in concert with at least one other team or the NFL.

From a legal perspective, would Kaepernick signing with a team interfere with, or outright disprove, his collusion grievance?

The answer is almost certainly “no.” Under Article 17 of the NFL’s collective bargaining agreement, collusion is defined to include numerous scenarios. Although collusion is sometimes thought of as involving a league-wide conspiracy, no such conspiracy is required. In fact, proving collusion merely demands a finding that two or more teams, or the league and at least one team, conspired to deprive Kaepernick of a contract offer or the chance to negotiate with a team.

Therefore, the number of potential “combinations” among these 33 organizations (the 32 teams plus the NFL) that could give rise to a possible collusion claim are in the millions. Just take the Miami Dolphins. Assume, for purposes of illustration, that the Dolphins colluded with between one and 31 teams against Kaepernick. The Dolphins could have colluded with the New York Jets; or with the Buffalo Bills; or with the Jets and the Bills; or with the Bills and the Dallas Cowboys; or with the Jets, Bills and the Cowboys; or with the Jets, Bills, Cowboys and the Detroit Lions; or with the Jets, the Bills, the Cowboys, the Lions and the Kansas City Chiefs; or with the Lions and the Cowboys but no others ... and so on and so on. The same kind of multi-factor analysis could be applied to any other team, and any one of the resulting combinations, if proven, would constitute actionable collusion. Also, all 32 teams, plus the NFL, remain vulnerable to a finding of a collusion: Arbitrator Stephen Burbank, in his decision to reject the NFL’s request for summary judgment, declined to remove any teams or the NFL itself from Kaepernick’s grievance.

If Kaepernick signed with one team, and if that team was removed from Kaepernick’s grievance, there would still be numerous potential combinations of colluders from the remaining 31 teams and the NFL. To extend that point, even the team that signs Kaepernick would not necessarily be removed from Kaepernick’s grievance. Keep in mind, Kaepernick filed his grievance on October 15, 2017. Under Article 17, a grievance must be brought within 90 days of the time when the player knows, or reasonably should have known, that he was victimized by collusion. It’s possible, then, that the team that signs Kaepernick in September or October 2018 colluded against him within 90 days of the day he filed his grievance in 2017 but is no longer doing so.

Whether Kaepernick can prove collusion remains an open-ended question. He convinced Burbank that there is a genuine issue of material fact and thus summary judgment for the NFL was inappropriate. As a result, Burbank will hold a “trial like” hearing in the near future. During the hearing, evidence will be examined and witnesses (most likely including NFL commissioner Roger Goodell and certain team owners) will testify. To prevail, Kaepernick must prove by a “clear preponderance of the evidence” that collusion occurred. This is a high burden and will require persuasive evidence, such as inculpatory statements by owners that were captured on videos, recordings, texts or emails or through witness testimony.

Of course, should he sign with a team, Kaepernick could decide to forgo his grievance. He might reason that he needs to focus his attention on learning a new playbook and acclimating himself to new coaches, teammates and a fan base. Don’t bank on it. Kaepernick seems to view his collusion grievance as part of a larger social cause. He has also become Nike’s primary face of the company’s 30th anniversary “Just Do It” campaign. Along those lines, Kaepernick is featured in a Nike ad with the accompanying statement “Believe in something. Even if it means sacrificing everything.” While Kaepernick’s Nike deal wouldn’t preclude him from signing with a team, there might be an implicit expectation that regardless of if and when Kaepernick returns to the NFL, he’ll pursue his grievance to its natural end: win, lose or acceptable settlement.

Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.