Colin Kaepernick vs. the NFL – lawyer makes a big claim
Mark Geragos, the lead lawyer for Colin Kaepernick in his collusion grievance against the NFL, made a bold claim today, during an appearance on the Adam Carolla Show:
“I think within the next 10 days somebody will sign him,” he said. “I think somebody’s gonna sign him. I think the NFL has to come to their senses, and realize every day that goes by just proves the collusion case even more.”
Now…that is a pretty bold and specific claim. Several possible motives for the claim spring to mind:
1. Geragos is trolling or bullshitting
2. Geragos believes that discovery will uncover evidence of collusion against Kaepernick
3. Geragos believes that discovery will likely uncover other evidence of collaboration or collusion between teams and owners that may put the NFL in a difficult legal position
(1) still seems likely. Absent a clear communication between two teams along the lines of “remember don’t sign Kaepernick”, it is still likely that insufficient direct evidence of collusion exists. Whether Geragos thinks that the circumstantial evidence of collusive intent (via the intemperate public and leaked comments of the POTUS and several NFL team owners) is strong enough is open to debate. However, absent a “smoking gun”, the case may well become a trial in the court of public opinion. (there may well, of course, be other private comments from owners that will turn up in discovery that could be damaging. We just don’t know that those might be).
(2) and (3) would add up to multiple problems for the NFL. If (2) is proved, they would would be forced to pay Kaepernick a large pile of money for effectively running him out of the NFL – that sum could easily be more than $50m. They would end up with an enormous PR black eye.
However, (3) represents the more serious risk for the NFL owners. The NFL currently enjoys a limited exemption from anti-trust legislation via the Sports Broadcasting Act of 1961. This was passed specifically to allow the NFL teams to collaborate on negotiating broadcasting deals. That is the full scope of the exemption. The NFL teams are not allowed to collaborate on any other commercial matters, or they risk being found guilty of violations of anti-trust law.
This means that evidence of collusion on any matter other than broadcasting rights carries two risks for the NFL. Firstly, it may make it easy for the arbitrator to rule against the NFL in Colin Kaepernick’s grievance hearing. However, secondly, and potentially much more dangerously, it may open the NFL to being charged with broader violations of anti-trust law. The TV broadcasting rights exemption has already come under fire on multiple occasions in the past, with threats being made to repeal the 1961 Act. A clear-cut finding of collusion on any subject could result in the entire act being nuked, leaving the NFL unable to operate as a group in negotiating distribution rights for broadasts of games.
Now…this is where it could get interesting…if the Sports Broadcasting Act was repealed, then theoretically any NFL team could do its own deal for broadcasting rights. They could sign a deal with a network or they could set up their own broadcasting operation with live streaming of games and other exclusive or non-exclusive content. For teams in big media markets (like Dallas, Washington, Seattle, New York etc.) this could actually be more lucrative than the current mechanism where all broadcasting revenues are pooled then distributed equally to all 32 teams. In other words, some of the new-wave aggressive owners like Jerry Jones and Daniel Snyder might not care about the loss of the anti-trust exemption, since they may have done the math and concluded that they can make more money selling their broadcast rights direct to the public.
However, any evidence of any sort of collusion will be embarrassing to the NFL, and will increase the chances of a ruling against them on the Kaepernick issue. More seriously, it opens the entire NFL up to complaints of anti-trust violations, which could be very expensive, not for fines, but for other remedies that a court might order. Courts have a LOT of power when punishing violations of anti-trust law.