Beatrice Chaudoin ’19
At the end of August, the arbitrator assigned to mediate Colin Kaepernick’s collusion grievance against the NFL declined to dismiss the case; it will now be brought before the same arbitrator later this year in a trial-like hearing.
The NFL requested summary judgement from the arbitrator — Stephen Burbank, a law professor at the University of Pennsylvania — which essentially amounted to a request for dismissal of the case. Kaepernick’s attorney posted a copy of Burbank’s written response to the request on social media:
“On August 28, 2018, the System Arbitrator denied the NFL’s request that he dismiss Colin Kaepernick’s complaint alleging that his inability to secure a player contract since becoming a free agent in March 2017 has been due to an agreement among team owners and the NFL that violates Article 17, Section 1 of the collective bargaining agreement between the NFL and the NFLPA (union).”
Kaepernick filed the grievance in 2017 in consultation with the NFLPA (the NFL Players Association); he has not played in the NFL since the 2016 season when, as a member of the San Francisco 49ers, he refused to stand for the national anthem to protest racial inequality and police brutality against African Americans.
His protest sparked national debate and strong backlash from conservatives; President Trump’s criticism has fueled the outrage of those who claim that Kaepernick’s actions are an insult to the United States. Although he opted out of his contract, the 49ers said that they would have released him if he had not done so. Kaepernick was the starting quarterback for the 49ers in Super Bowl XLVII but has not been signed since the end of his deal with the San Francisco team.
The failure of any other team to sign Kaepernick during the 2017 off-season and training camps led some, notably Seattle Seahawks cornerback Richard Sherman, to assert that he was being blackballed because of his political actions. Other players, including Kansas City Chiefs quarterback Alex Smith and New England Patriots quarterback Tom Brady, have indicated their belief in his ability as a quarterback and their incredulousness over his continued unemployment. An article by Kyle Wagner of FiveThirtyEight asserted that it was “unheard of” for a player of Kaepernick’s caliber to have remained unsigned for such a long period of time as a free agent.
Despite an apparent general consensus about Kaepernick’s capabilities as a player, the NFL Collective Bargaining Agreement stipulates that a player’s employment status alone is not enough to prove collusion. Under the CBA, Kaepernick and his attorney must prove that the league and teams acted in concert on the matter of his unemployment. NFL Commissioner Roger Goodell has asserted that teams made their own individual decisions not to sign Kaepernick and that these decisions were made based on his playing ability, not his politics.
Other players continued to protest during the anthem throughout the 2017 season. On the NFL’s opening Sunday for the 2018 season, two Miami Dolphins players, Kenny Stills and Albert Wilson, kneeled for the duration of the national anthem, while a third teammate, Robert Quinn, raised his fist. Kaepernick tweeted his support, writing, “My Brothers [Stills] and [Wilson] continue to show their unwavering strength by fighting for the oppressed … Love is at the root of our resistance.”
If the NFL is found to be in violation of the CBA’s anti-collusion article, Kaepernick could be awarded compensatory damages based on economic harm and additional damages.
