The NFL, Nike, & Kaepernick

 

Earlier this year, the NFL and Nike announced that they were extending their partnership to 2028, coming into effect once the current deal expires in 2020. While the partnership primarily concerns league apparel, it is not hard to imagine that the NFL was not overly enthusiastic about Nike’s recent use of Colin Kaepernick in a new ad campaign. The league, now committed to Nike for the next ten years, seems to be at odds with Nike over Kaepernick and presumably the anthem protests. While the league’s statement seems supportive, and regardless of whether or not it is hypocritical of the league’s typical stance on political statements, there has to be some concern over the message and its link to Kaepernick’s ongoing collusion claim.

Believe in something. Even if it means sacrificing everything.

The advertisement’s message seems clear, Kaepernick sacrificed his career as an NFL quarterback to raise awareness and fight for a cause he believes in. What does this mean for the league?

A whirlwind of controversy followed Nike’s announcement. Tens of thousands of people took pictures and videos of as they cut the swoosh logo off their socks, burned various Nike apparel, and called for a boycott of the company. Several schools have also announced their intention to drop Nike as a supplier of gear. Based on the typical provisions in the licensing deals with universities, it is likely impossible for the schools to drop Nike without financial ramifications. Does the NFL have the same issue?  Based upon the NFL’s equivocal statement about the new Nike campaign, it appears to be dodging the issue:

 

“The National Football League believes in dialogue, understanding and unity,” president of communications and public affairs Jocelyn Moore said in the statement. “We embrace the role and responsibility of everyone involved with this game to promote meaningful, positive change in our communities. The social justice issues that Colin and other professional athletes have raised deserve our attention and action.”

Kaepernick’s collusion claim against the NFL only recently survived a motion for summary judgment. At this point, the league and individual teams are likely starting to get concerned over the possibility that his claim (and Eric Reid’s) could be successful. Anti-collusion claims fall under Article 17 of the collective bargaining agreement. Damages are calculated as compensatory [i.e., amount the player was injured] and non-compensatory. Non-compensatory damages are calculated as double the compensatory damages and paid to an entity pursuant to article 17, section 11 of the CBA.  In order to be successful, Kaepernick must show that at least two parties – the NFL and a team, or two teams – conspired to prevent him from obtaining another position as quarterback.  The dismissal of the summary judgment motion at least indicates that there is a question of fact about this issue.

While any developments that might support Kaepernick’s claim will almost certainly raise eyebrows within the league, the question remains, can the league do anything about the Nike campaign?   The answer depends upon the exact terms of the agreement with Nike, but the NFL’s equivocal response to date suggests that the answer is no.