Wear My Dawg's Hat
Superstar
Someone explained it earlier but the owners each individually saying they don't want him for the flag or anything else isn't illegal, they can do that publicly or privately, what is illegal is one owner telling (collusion) another owner specifically not to hire him.
Sports Illustrated has a fairly-detailed analysis of Kaep's legal case at the moment.
Collusion requires actual cooperation between teams (or cooperation between a team or teams and the league)
Here’s a scenario that has probably played out in recent months: Officials on one NFL team meet to discuss the team’s need for a quarterback. Kaepernick is one player they discuss. The officials then decide, without the involvement of any other team, to not sign Colin Kaepernick. Instead, the team signs a quarterback who, by objective metrics, isn’t as good as Kaepernick. These officials even admit to taking such an approach because they believe that Kaepernick would be a distraction. They also openly disagree with his political views and are offended by his kneeling during the national anthem.
Sounds suspicious, right? It’s not, at least not for purposes of collusion.
The scenario I just described is not collusion because it involves only one team. To be sure, those officials might regret not signing the “better” player. That’s not the point. It is lawful for one team to not want Kaepernick on grounds that team officials don’t like him. Along those lines, no NFL team is legally obligated to sign Kaepernick.
For Kaepernick to prove collusion, he would need to show that two or more teams, or the league office and at least one team, conspired in some way to deny him an opportunity to play in the NFL.
Kaepernick needs evidence of collusion
Kaepernick needs more than mere supposition or belief that he has been victimized by a conspiracy. Perhaps he has an email, text, social media message, video, audio recording, hand-written note or sworn testimony from a witness. Maybe his agents, Jeffrey Nalley and Sean Kiernan, are in possession of such evidence. Regardless, the evidence must clearly show that two or more teams, or the NFL and a team or teams, conspired to deny Kaepernick of an opportunity to play in the NFL.
So where might Kaepernick have uncovered evidence that he believes proves collusion? We know that if it occurred, it must have been within the last 90 days, as under Article 17 of the CBA a player has that long to file a grievance. Otherwise we are left to speculate.
One possibility: Given the public uproar over players engaging in a form of protest during the national anthem, could officials on different teams have exchanged emails about the topic and, in doing so, pin the blame on Kaepernick? Sure. After all, Kaepernick began the controversy last season.
Yet even if Kaepernick is in possession of those kinds of emails, they may not prove collusion. He would need to show that he has been deprived of a collectively bargained right—namely, the right to sign with a team. Emails from officials on different teams merely criticizing him might not rise to the necessary level.
An arbitration hearing isn’t as worrisome to the NFL as would be a trial
The hearing for Kaepernick’s grievance will be a private arbitration hearing—not a public trial. Although the federal rules of evidence will apply, NFL arbitration does not involve nearly the same degree of pretrial discovery as found in a trial. No subpoenas or warrants will be available in such a forum, and witnesses cannot be compelled to testify upon threat of being jailed. These dynamics could limit the ability of Kaepernick to force the NFL to answer to his claims or theories.
If Kaepernick wins, he could receive many millions of dollars
If Kaepernick can prove collusion, he stands to receive a sizable amount of money. His damages would be trebled: hypothetically, if Kaepernick proves that collusion cost him $10 million, he would be awarded $30 million in damages.
This is because Kaepernick would be awarded two types of damages. The first would include compensatory damages for the money he lost due to collusion. Under the penalty scheme for collusion, Kaepernick would also receive non-compensatory (or punitive) damages of twice the value of his compensatory damages (thrice if the team is a repeat offender, though no team is likely in such a category).
How could an arbitrator be sure as to the appropriate amount of compensatory damages for Kaepernick? It would clearly be a difficult analysis. The arbitrator would have to envision a world that never occurred and then surmise what Kaepernick, at age 29, would have earned in it.
Michael McCann is SI’s legal analyst. He is also an attorney and the Associate Dean for Academic Affairs at the University of New Hampshire School of Law, and co-author with Ed O'Bannon of the forthcoming book Court Justice: The Inside Story of My Battle Against the NCAA and My Life in Basketball.
Colin Kaepernick’s Collusion Claim: Legal Analysis