FFS – Sunday 5th November 2017

As the number of NFL figures being asked to provide evidence for the discovery phase of Colin Kaepernick’s collusion complaint against the NFL slowly expands, the amount of bullshit noise being generated by opponents of Kaepernick is slowly increasing.
There are some standard themes to the bullshit noise. So, let’s put some of this bullshit down in the sewerage system where it belongs.

1. Colin Kaepernick terminated his contract with the 49ers therefore he has no basis for a complaint
Yes, he did opt out of his contract. However, the 49ers were going to terminate his contract anyway. This is not speculation or a matter for debate. This has been publicly confirmed by 49ers General Manager John Lynch.
In any case, this is not relevant to a collusion complaint. The basis of the complaint is that Kaepernick, an available free agent, was denied employment by collusion between multiple NFL teams. How he came to be a free agent is irrelevant to the complaint.

2. Colin Kaepernick is a mediocre player not deserving of a position on a team
It is difficult to assign the label “mediocre player” to a quarterback who played in a Superbowl and almost led his team to a victory. Statistically, Kepernick is better than dozens of other quarterbacks who currently have contracts with NFL teams. Sorry, this is nonsense. The facts show otherwise.


3. NFL owners do not have to turn over their phones and records for discovery, this is a fishing expedition

If a court agrees with an application from a plaintiff that you have to turn over objects and records of events as part of discovery, this is not an optional request. Failure to comply can (and usually will) lead to an application by the plaintiffs for a contempt order against you. Ultimately you may have to decide whether you hand over the requested information, or go to jail.
Now…you can argue in a motion that the discovery request is impermissibly broad. However, you have to convince a court that this is the case, and courts are usually fairly deferential to discovery requests as long as they are not obviously outside of the scope of the initial or amended complaint.
So, absent a ruling against the discovery request, refusing to comply is not really an option.

4. If the collusion complaint succeeds, the Collective Bargaining Agreement will be terminated
For Colin Kaepernick’s collusion complaint to succeed, the arbitrator only has to decide that two or more teams colluded to deny him employment.
Now…the CBA does have a clause covering the impact of collusion being proved. However, the current CBA states that the termination of the CBA can only occur if 14 or more teams are found to have colluded against 1 or more players. So, unless the arbitrator rules that collusion took place involving 14 or more teams, the NFLPA cannot terminate the CBA based on a victory by Kaepernick.
Given that the Kaepernick complaint only covers a maximum of 10 teams, this makes a termination of the CBA due to this complaint look pretty unlikely.

4. The NFL owners are independent businesses, they can decide who they hire and fire
Sure they can. However, under the terms of US anti-trust law, NFL teams are not supposed to collaborate or collude on any matter other than broadcasting rights. That is not the NFL’s own rules, it is US anti-trust law.
Any finding that any two or more teams in the NFL collaborated to ensure they did not employ Colin Kaepernick is not only a violation of the CBA, but, far more seriously, it could result in a formal complaint to the DOJ that the NFL teams in question are in violation of anti-trust law.
The judicial remedies for anti-trust violations are almost unlimited. A judge could just shut the NFL down – literally. That is one of the reasons why the NFL teams are so nervous about the deposition and discovery process. It is not just about the collusion complaint. Any evidence that emerges of more general collusion risks igniting a public discussion and debate about the NFL’s behavior with respect to anti-trust law. Nobody in the NFL wants that to happen.

5. The players are obliged to stand for the anthem
Nope. The players’ contractual obligations to the NFL are defined in their individual contracts, however, those contracts are written to comply with the Collective Bargaining Agreement (CBA). A copy of the CBA can be found here.. It is not difficult to read it.
There are no current rules within contracts or the CBA obliging players to stand for the National Anthem. Therefore, at this time, the players cannot be forced to stand. If a team tries to discipline any player, or terminate their contract for not standing, the player and the NFLPA would file a grievance against the team, and they would win it.
The other thing to realize is that forcing anybody to stand for the anthem or to salute the US flag has, on multiple occasions, been ruled by SCOTUS as a violation of people’s constitutional rights. This is not a subject for debate. There are multiple SCOTUS rulings covering this area. This is why, when asked about whether players should stand for the anthem, Roger Goodell has been stating “players should stand for the anthem”, not “players shall/will stand for the anthem”. He, more than most people, knows that not only does the NFL not currently have the right to force players to stand, it will never have the right, unless several SCOTUS rulings are overturned.

6. The anthem controversy is causing fans to stop watching the NFL
This is an interesting one…but no, once again this is not factually based. The NFL has been losing viewers for 3 years, going back to 2015, before Colin Kaepernick started kneeling. There are some fundamental underlying demographic and trend reasons for this, which have nothing to do with the anthem protest. Now, is there a bigger decline in 2017? Well, if there is, there is no reliable data on the underlying causes. Anybody can claim to be boycotting the NFL because they hate Colin Kaepernick, but in terms of statistically valid information, claims prove nothing. The facts, folks, the facts. This is also a reason why everybody should be skeptical of the Pappa John’s Pizza CEO blaming the NFL protests for a down-turn in the corporation’s stock price. Pappa Johns was suffering way before the anthem protest. This is nothing more than bullshit scapegoating.

I left out other far more subjective arguments, like the whole “he’s a distraction” line of argument. That, for me, is hopeless bullshit, given the willingness of the NFL to not only tolerate but embrace contentious, outspoken and badly-behaved players in the past, as long as they were perceived as successful by the teams employing them. Colin Kaepernick does not have a criminal record or a list of civil complaints against him. In all legal respects, he has been a model player. So, no, the “distraction” argument is below bullshit.

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