In order to win his collusion grievance against NFL owners, Colin Kaepernick will need to prove a pattern of communication with and between teams that led to his current unemployment, a labor law expert told USA TODAY Sports.
“He’s going to have to show some kind of pattern -- of dealings with the clubs, where clubs were aware that he was willing and able to work, where there was some sort of communication with him and then unexplained reasons went elsewhere,” said William Gould, the Charles A. Beardsley Professor of Law, Emeritus, at Stanford University.
Gould is the former chairman of the National Labor Relations Board and a former salary arbitrator for Major League Basebal, as well as the author of the book Bargaining in Baseball.
He called Kaepernick’s collusion grievance, which was filed by the quarterback’s lawyers over the weekend, a “landmark development” not just for the NFL, but for professional sports in general. The outcome of this case could have far-reaching effects beyond what it means for Kaepernick individually.
“We haven’t really seen this type of activism on the part of athletes since the 1960s,” Gould said.
But first, Kaepernick will have to try to prove to arbitrator Stephen Burbank that multiple owners conspired to keep him out of the league.
Gould said the arbitrator will likely allow discovery from both Kaepernick’s team and the NFL Players Association, as well as from the league and teams. Officials, including NFL Commissioner Roger Goodell, could be subpoenaed to provide testimony. Gould believes the arbitrator could also look for evidence of communication beyond just Kaepernick and into other players who have chosen to protest.
“(The arbitrator) is going to be interested in evidence not just from one or two clubs but by a substantial number. Not necessarily all or the majority of clubs, but by a substantial number of clubs,” Gould said. “Of course, he'll also be interested in any communications, if they exist, between clubs and other clubs, and between clubs and the commissioner on Mr. Kaepernick, or on the general kneeling issue.”
Indeed, this case may not end with Kaepernick getting a job in the NFL. But should he win, it could be monumental for other players currently employed who are engaging in some form of protest, or future players who would like to do so, Gould said.
“Clubs can want players for all kinds of reasons, but it seems clear this [collective bargaining agreement] provides, and I think that an arbitrator would conclude, that they can't pick and choose on the basis of the exercise of a viewpoint,” Gould said.
Follow Lindsay H. Jones on Twitter @bylindsayhjones.
