Colin Kaepernick’s collusion allegations survive summary judgment

Where there’s smoke…

It has been exactly two years since Colin Kaepernick first knelt during the playing of the national anthem during the San Francisco 49ers preseason finale. So much has changed since then, yet, in some respects, nothing has changed. Kaepernick is still out of a job, the NFL has no idea how to address the issue, game broadcasters plan to ignore the issue and simply not televise the anthem, some players are still going to kneel, and the President will surely tweet about it at some point.

While the issue of protests during the national anthem seems to be stuck on repeat, Colin Kaepernick’s anti-collusion grievance with the NFL is progressing. On Thursday, the System Arbitrator overseeing the grievance between Kaepernick and the NFL made a major ruling in Kaepernick’s favor.

Kaepernick is bringing his complaint against the NFL pursuant to Article 17, Section 1 of the collective bargaining agreement (CBA) between the NFL and the NFL Players Association. This section prohibits collusion between the NFL and the club teams regarding the offering or negotiating of contracts with any player.

Most notably, the section expressly states “[n]o 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 individual Club decision-making” in respects to “whether to offer or not to offer a Player Contract to any player”.

This is notable because it is a misconception to believe that Kaepernick must prove all 32 teams colluded with the NFL to keep him off of a 53-man roster. For his claim to be successful, all that Kaepernick needs to establish is that at least two teams had an agreement to not sign Kaepernick to a contract. This agreement could have simply been implied and is not required to have been memorialized.

Per Article 17, Section 7, at the close of discovery the System Arbitrator may dismiss the complaint pursuant to summary judgment should discovery fail to raise any “genuine issue of material fact”.

This is why Thursday’s ruling is so important. The System Arbitrator determined, after reviewing all the evidence and depositions produced by Kaepernick and the NFL, that there was enough evidence to suggest that Kaepernick may be able to prove the NFL or its teams colluded in keeping Kaepernick unsigned.

Section 6 details the burden a complainant must satisfy for his claim to be successful. Per this section, a complaint will properly be dismissed if the only evidence produced pertains to the player’s skills and the fact that the player in question remains unsigned.

What this means is, Kaepernick and his lawyers produced enough evidence to suggest there is more to his being unsigned than just his skills.


Photo: Thearon W. Henderson / Getty Images

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