The NFL and Colin Kaerpernick announced Friday they’ve reached a settlement in the case in which the quarterback accused the league and its 32 teams of colluding to prevent him from playing because of his decision to kneel during the playing of the national anthem.
The terms of the settlement were not disclosed, leaving those in and around the sport to speculate about what it might have cost the league and team owners to avoid a hearing in the case.
The sideline protest by Kaepernick, which he began in 2016 to call attention to racial inequality and police mistreatment of African Americans, ignited a polarizing movement of NFL players protesting during the national anthem and made him an internationally recognized civil rights advocate.
A separate collusion grievance by Carolina Panthers safety Eric Reid, formerly Kaepernick’s teammate with the San Francisco 49ers who protested alongside him, also was resolved. Reid is currently with the Carolina Panthers.
Kaepernick’s protests and his inability to get back on the roster of an NFL team the past two seasons prompted a spirited public debate about issues of race, social justice and patriotism. The controversy was intensified at times by President Trump, who accused kneeling players of being unpatriotic and called on team owners to fire them.
Kaepernick, 31, who led the 49ers to the Super Bowl in 2013, became a powerful symbol to both his supporters and detractors. His future as a football player was not addressed by Friday’s announcement.
“For the past several months, counsel for Mr. Kaepernick and Mr. Reid have engaged in an ongoing dialogue with representatives of the NFL,” the statement by the league and the players’ lawyers said in announcing the settlement. “As a result of those discussions, the parties have decided to resolve the pending grievances. The resolution of this matter is subject to a confidentiality agreement so there will be no further comment by any party.”
The NFL Players Association also confirmed the settlement, but offered no details
“We continuously supported Colin and Eric from the start of their protests, participated with their lawyers throughout their legal proceedings and were prepared to participate in the upcoming trial in pursuit of both truth and justice for what we believe the NFL and its clubs did to them,” the union said. “We are glad that Eric has earned a job and a new contract, and we continue to hope that Colin gets his opportunity as well.”
The Kaepernick case had been headed to a hearing before arbitrator Stephen Burbank, the University of Pennsylvania law professor who is assigned to resolve disputes between the NFL and players union arising from their collective bargaining agreement. Burbank rejected a request by the league last year for summary judgment, in effect denying the NFL’s bid to have the case dismissed. That set the stage for a triallike hearing to be the next step in the case.
“I think they didn’t want to go through a hearing, and that gave him [Kaepernick] some leverage,” said Carl Tobias, a law professor at the University of Richmond. “When Burbank allowed it to move forward, that was significant. But it is a high bar. How are you going to prove the owners colluded? That’s difficult to prove.”
Owners, team and league executives and coaches had participated in depositions in the case and could have been called as witnesses.
Legal experts had said throughout the process that Kaepernick and his lawyer, Mark Geragos, faced a high bar in attempting to prove collusion by the league and teams. The collective bargaining agreement prohibits teams and the league from colluding on decisions about whether a player should be signed. But the agreement also says that a player’s employment status alone and comparisons to players who have been signed are not enough to prove collusion.
So Geragos and Kaepernick didn’t have to show only that Kaepernick belonged on an NFL roster, was better than other quarterbacks who were on rosters or was being kept out of the league because of his protests. They had to prove to Burbank, legal experts said, that teams conspired with each other or with the league office to keep Kaepernick from playing.
Outside observers frequently pointed over the last two seasons to the quality of other quarterbacks being signed by NFL teams, while Kaepernick remained unsigned, contending that Kaepernick was being blackballed because of his protests. When the Washington Redskins said they considered signing Kaepernick late this past season but decided against it for football reasons, Geragos said: “Isn’t it obvious what’s happening?”
But NFL Commissioner Roger Goodell denied that collusion had taken place, saying whenever asked about the Kaepernick matter that teams make their own independent decisions about players. Kaepernick and Geragos had not disclosed what evidence, if any, they might have had of collusion.
“How many owners do you need to prove collusion? . . . [T]he world may never know!!” Philadelphia Eagles safety Malcolm Jenkins wrote Friday on Twitter.
Some observers expressed a measure of disappointment that the case did not play out to a conclusion.
“The clandestine activities (whether formal or informal) [that] have impacted Kaep/Reid will remain clandestine in application to others who come behind them,” former agent and NFL salary cap expert J.I. Halsell wrote on Twitter.
If the case had gone to a hearing and Burbank had ruled in Kaepernick’s favor, the arbitrator could have awarded Kaepernick damages based on the economic harm suffered by the quarterback. There also could have been additional damages, under a finding of collusion, that would have been a multiple of the compensatory damages. If a large enough number of teams had been found guilty of colluding, the union could have secured the right to void the remainder of the collective bargaining agreement.
Agents and employees of some teams not connected to the case were speculating Friday about the possibility of the settlement being in the tens of millions of dollars. But Tobias said it was difficult to estimate.
“It’s hard to know,” Tobias said in a phone interview. “We may never know. You just don’t want to roll the dice. The NFL could have lost. Kaepernick could have gotten this far and still lost. That’s how you get to yes [on a settlement], I would say. It’s a classic sort of settlement scenario. I’m sure the NFL didn’t want any more bad publicity. Kaepernick, to some degree, is vindicated. He took a principled stand and saw it through.”
Kaepernick not signed by any team as a free agent after opting out of his contract with the 49ers following the 2016 season. The 49ers said they would have released Kaepernick under the terms of that contract if he had not opted out of the deal.
The controversy peaked during the fall of 2017 after Trump said at a rally that owners should fire any player who protests during the anthem. In an effort to defuse the issue, owners negotiated a social justice deal with the Players Coalition, a group led by Jenkins and former NFL wide receiver Anquan Boldin, in late 2017. The deal provides funding by teams and the league to players’ social activism. Reid withdrew from the Players Coalition and had an on-field confrontation with Jenkins this past season, accusing Jenkins of selling out to the league.
Owners modified the sport’s national anthem policy before this past season but abandoned the revised policy soon after, then avoided revisiting the issue when the protests and controversy subsided during a 2018 season in which the sport’s TV ratings rebounded.
“I think what you saw this year were players who still had the right to protest if they chose to do so,” DeMaurice Smith, the NFLPA’s executive director, said late last month in Atlanta during Super Bowl week. “Regardless of whether it falls in or out of the public eye, that’s not something we really spend a whole lot of time thinking about. Our job was to make sure that we did everything we could to protect our players’ rights.”
Kaepernick later became the centerpiece of a controversial ad campaign by Nike and recently rebuffed the interest of the fledgling Alliance of American Football, with The Associated Press reporting that he sought $20 million to play in the new league.
Reid played this past season for the Panthers. He protested alongside Kaepernick during the 2016 season, while with the 49ers, and has continued those protests since then. Reid just signed a three-year contract extension with the Panthers worth nearly $21.7 million.
The NFL previously prevailed in a separate grievance brought by the NFLPA accusing the Cincinnati Bengals of acting improperly by asking Reid about his protests during an offseason free agent visit.
(c) 2019, The Washington Post · Mark Maske