Several Hurdles Facing Colin Kaepernick’s Collusion Grievance

Collusion is an agreement among two or more people to prevent a person from exercising a contractual right. 

Colin Kaepernick has filed a grievance (a complaint) under the NFL labor agreement. Essentially, he is arguing that teams have colluded to keep him out of the NFL because of his kneeling during the national anthem.

Some brief points.

First, the reason for collusion would be irrelevant. If owners agreed that they did not want to hire a left-handed quarterback—a silly reason— that would still be collusion. 

Second, proof of collusion is very hard. Kaepernick needs to show that two or more teams agreed not to hire him.

Third, he opted out of his contract last year. He thought he could get a better contract. That’s on him. The point is that no one cut him—he overestimated his value. We've never heard his asking price-- and it's likely to be somewhat embarrassing for him because he opted out of a decent contract.

Fourth, there is a 50-day limit on filing a grievance. Why didn’t he file last year? He may be able to argue that he has come up with proof in the last 50 days. Possible? Yes. Likely? I doubt it. Why would teams that are heavily pre-occupied with their roster problems—and competing against each other—and facing many players who are taking a knee— sit around and blackball Kaepernick in the last 50 days?

Here is the contract language. Tell me what you think at mhl@illinois.edu.

ARTICLE 17 ANTI-COLLUSION

Section 1. Prohibited Conduct: 

(a) No 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 as follows: (i) whether to negotiate or not to negotiate with any player; (ii) whether to submit or not to submit an Offer Sheet to any Restricted Free Agent; (iii) whether to offer or not to offer a Player Contract to any player; (iv) whether to exercise or not to exercise a Right of First Refusal; or (v) concerning the terms or conditions of employment offered to any player for inclusion, or included, in a Player Contract. 

(b) Any approval or disapproval of a player’s contract by the Commissioner, or any communication thereof, timely notice of which is provided to the NFLPA cannot be the basis of any claim of collusion. The NFLPA or the affected Player shall have the right to appeal the Commissioner’s disapproval of such player contract to the System Arbitrator, pursuant to Article 15 and Article 14.

Section 2. Other Club Conduct: No Club may have a policy not to negotiate with, or enter into a Player Contract with, any player who is free to negotiate and sign a Player Contract with any Club, on any of the following grounds, if such policy is inconsistent with Section 1 above: 

(a) that the player has previously been subject to the exclusive negotiating rights obtained by another Club in a College Draft, by virtue of a Required Tender to a player with less than three Accrued Seasons, or a Franchise Player designation; or 

(b) that the player has refused or failed to enter into a Player Contract for a prior season containing a Right of First Refusal or an option clause (i.e., any clause that authorizes an extension or renewal by a Club of a Player Contract beyond its stated term); 

(c) that the player has become a Restricted Free Agent or an Unrestricted Free Agent; or 

(d) that the player is or has been subject to any Right of First Refusal.