Sport

In November, Colin Kaepernick filed a grievance against the NFL alleging collusion.
Under the Collective Bargaining Agreement, grievances are processed within the NFL according to the Federal Rules of Civil Procedure. This means that a discovery period occurs, where both sides get to review the evidence, and where depositions can be requested and taken under oath from witnesses and interested parties.
We are now entering the deposition period of this grievance. One of the underlying weaknesses of the NFL is beginning to undermine the NFL’s whole defense to the collusion allegations.
What is known in the public eye as “The NFL” is really 32 independent businesses, all of which (with one exception, the Green Bay Packers) are privately owned, usually by a family that controls the majority of the equity in the team. The NFL organization, with Roger Goodell as its commissioner, has very limited authority over the 32 teams, because it really functions as a head office, PR front, and mechanism by which the NFL, under its limited anti-trust exemption (codified in the Sports Broadcasting Act) can negotiate broadcasting and other league-wide contracts.
Roger Goodell is employed by and is subordinate to the NFL owners. As one might expect from a collection of businesspeople who own private businesses and have (mostly) total control, the team owners are a feisty bunch of sometimes-cranky folks who mostly intensely dislike being told what to do by ANYBODY. They are also, with one exception, elderly white guys.
Because Goodell has no ability to tell owners what they can and cannot say in public on any subject, the NFL is now slowly, but inexorably, digging itself into a hole over the Colin Kaepernick collusion complaint. Any lawyer with a functioning brain would gather all defendants and persons of interest in a case like this into a room and the first piece of advice would be “stop talking in public about this case or any subject related to this case NOW”. Roger Goodell may have already told the owners this, but his words do not seem to be getting through. Via their own public comments, and a slow but growing number of leaks of information (possibly from Kaepernick’s team), the NFL is being backed into a cross between a corner and a hole over the collusion complaint. In the last 2 weeks the following information has become public:
– Steven Ross, the owner of the Miami Dolphins, apparently announced that he would require all Dolphins players to stand for the National Anthem (despite the reality that he cannot legally do that), only to walk that statement back publicly a few days later
– At least 2 NFL player agents reported that the Houston Texans are “not interested” in signing any player who has protested during the playing of the National Anthem
– John Harbaugh, the coach of the Baltimore Ravens, was apparently advised by a military officer that signing Colin Kaepernick was not in like with the core values of the NFL

None of these actions (and two of them are rumors, not fact) prove that collusion occurred. However, they are slowly placing the NFL in a situation where, even if they win the collusion grievance against Colin Kaepernick, they will emerge having lost in the court of public opinion. The picture that is emerging from the unguarded public comments of owners, and rumors and leaks, is not a flattering one. It shows a league whose ownership is determined to squash dissent from the players, and which is more scared of offending hyper-patriots than it is in supporting social justice.
We can be sure that Steven Ross, John Harbaugh, and the two player agents are now on the list of people who will be requested to give depositions. Their names are going to be added to a lengthy existing list which includes Roger Goodell, his wife Jane Goodell (who ran a fake Twitter account on his behalf), Jerry Jones, Robert Kraft, Bob McNair, and Steve Bisciotti.
Kaepernick’s lawyers also want to depose ex-Pappa John’s CEO John Schattner, but that is unlikely to occur since the NFL no longer has a relationship with Pappa John’s (notice how quickly they have been replaced as the NFL Official Pizza supplier?) and Schattner had no direct contractual affiliation with the NFL.
The NFL has emerging challenges that are unavoidable, with viewership steadily declining as more people bail on network and cable television, and its core viewing demographic is ageing.
At the point where the NFL needs a positive relationship with the players, it does not have one. Goodell is widely distrusted by the players over the bruising negotiations at the time of the last Collective Bargaining Agreement, and his approach to player discipline which is seen as capricious and arbitrary.
These are challenges that will be difficult to overcome, and the drip-drip of negative news about the Colin Kaepernick case is making matters worse. If the NFL does not have a plan to settle the grievance in advance of a hearing, it needs one, and fast. Winning the hearing will be a loss if the public perception is that Kaepernick was railroaded out of the NFL.

I am not watching any NFL games right now. I think you know why. At least, I already told you.
However, I can read numbers, and my Twitter feed is alive.
The numbers and Twitter told me that Nathan Peterman, promoted to the starting quarterback position today for the Buffalo Bills to replace Tyrod Taylor, who, in the age-old jargon of pro football, was benched, came into the game at the start today against the San Diego Chargers and proceeded to throw 5 interceptions in the first half. Whereupon, he was removed from the game, and Tyrod Taylor, the man he replaced, was re-instated as the quarterback.
The Bills were down 40-7 at halftime when Peterman was replaced. They ultimately lost the game 54-24.
In other words, with Peterman under center, the Bills were outscored by 33 points. With Tyrod Taylor under center, the Bills gained back 17 points on offense, but gave up another 14 on defense.
Peterman was a good college quarterback not playing on a title-winning team. The Bills had drafted him in the 5th Round this year, and he had won the number 2 spot on the quarterback chart in the pre-season. So, with the Bills seemingly no longer convinced that they could win with Tyrod Taylor, he was The Man when they decided to bench Taylor.
Now, I keep reading all of the time these days that the NFL is nothing like college on offense. Most college teams do not run NFL-style offenses any more, relying heavily on read-option-based offensive schemes that require limited check-downs by mobile quarterbacks. The lament I read is that many college quarterbacks are nowhere near ready to run an NFL-style offense out of college. This implies that many rookie quarterbacks are essentially “project” players, not expected to play for at least 2 seasons.
Peterman’s scouting reports out of college reveal a smart, fairly accurate passer, but one lacking the deep-throw arm strength prized by many NFL coaching teams.
So, I wonder: just what the hell were the Bills doing throwing a 5th round draft pick with limited pre-season game experience and only mop-up regular series experience into a game at a crucial point in the season, with the Bills’s season finely poised at 5-4?
What possible improvement could he provide over Tyrod Taylor?
He does not have a cannon for an arm, so the idea that the Bills could suddenly become a vertical passing team makes no sense. That is before you even look at the Bills’ receiving corps, which does not scream “deep threat”. In fact, it doesn’t even scream “receiving threat”. The Bills do not have a single top-drawer receiver, and their best current receiver, Jordan Matthews, was inactive for today’s game. So Peterman did not exactly have much in the way of likely downfield targets. He can scramble, but lacks the fleet-footed elusiveness of Taylor, who has excelled in the past at escaping from seemingly hopeless broken-play situations and making something happen, usually with his legs.
At this point some bright spark will say “but…Tom Brady!”.
OK Weisenheimer, let’s look at Tom Brady.
Brady was drafted in the 6th round out of Michigan. He was the number 3 quarterback for all of his first season, mostly inactive on game days. In his second season, he moved up to the number 2 spot on the quarterback chart. He was then promoted early to starter after Drew Bledsoe suffered a serious chest injury.
At the time of his promotion, Brady had already been in the Patriots’ system for over a season, and had played in 2 seasons’ worth of pre-season games. By any objective standards, he was far more experienced in the NFL than Peterman was when he ran out on the field today. As history shows, Brady was ready and able to assume the quarterback role for the Patriots at the time of his promotion. As today shows, Peterman was not.
But this is not just about Peterman.
It’s also about the team. Peterman was not expected to be the starter, so he had limited work with the first-team offense in the pre-season, and he and the team had 1 week to prepare for the game. Peterman is a fundamentally different player to Taylor – he is basically a pocket passer with some scrambling ability. Taylor is a scrambler first and foremost, and his pocket skills and check-down abilities are said to be weak, which is probably part of the reason that he was benched.
Most importantly, this decision is about leadership.
Bad leadership.
The decision to insert Nathan Peterman today was professionally negligent. If it was mid-December, with the Bills at 4-9 or similar and already eliminated from the playoffs, the decision would have made a lot of sense. With Taylor on an option year for his contract, it would be time to play the rookie and see what he can bring to the team. But, for crying out loud, the Bills were at 5-4, and still very much in the hunt for a playoff slot. Playing Peterman has resulted in a blowout loss, which leaves the Bills at 5-5, and in a much weaker playoff position.
Now…I can think of a reason why the decision was made to start Peterman today. The head coach for the San Diego Chargers, Anthony Lynn, had been the offensive co-ordinator for the Buffalo Bills the previous season, and the coaches may have decided that Lynn, experienced in the play and behavior of Tyrod Taylor, would create a game plan for the Chargers to disrupt a Taylor-led offense.
While this is all logical, swapping quarterbacks at the last minute only works if the team and the new quarterback are prepared to execute a different sort of game plan. As we saw today, that was not the case.
The decision and resulting loss has left the quarterbacks in a bad place. Taylor was benched last week, a signal (probably already received) that he has no real future in Buffalo. Peterman was thrown into the fire, and has been severely singed, with 5 interceptions in 30 minutes of play ringing in his brain. That will shake any quarterback, especially a rookie.
But the bigger negative message will have made its way to the team. By benching an established starter and experimenting with an unproven rookie, the Bills leadership has essentially told the team that they are quite prepared to throw away the season. That is a horrible message to send. It may actually cause the team to quit on the coaching staff.
No matter which way you analyze the decision to play Nathan Peterman, it was a terrible decision. The only saving grace is that the coaches realized that they had made a big mistake and re-inserted Tyrod Taylor for the second half, but with a leaky defense, and a second-rate offense, even Superman would have struggled to bring the Bills back from a 40-7 hole.
It would not surprise me if one or more heads roll in Buffalo next week. There was no saving grace, no visible upside from today’s events. There is nothing that the coaching staff can point to that was obviously good. They might argue from game tape that Peterman did X better than Taylor, but 54-24 as a box score will blow any of that pretty-pretty analysis to hell and back. If Twitter is any indication of fan reaction, the Bills fans were furious with the outcome, and they blame the coaching staff. Something may have to change.

Today’s news gets more and more interesting, or more and more worrying if you are running PR for the NFL.
Hot on the heels that the Houston Texans went out and signed two quarterbacks today to replace DeShaun Watson, neither of whom is named Colin Kaepernick, comes the news that the legal team acting for Kaepernick in his case against the NFL has officially asked that several NFL owners, including Jerry Jones, Robert Kraft, and Bob McNair, be deposed. Additionally, other teams are being asked to turn over all communications that might be related to Colin Kaepernick, including emails and mobile phone records.
Now, I have one question for you all: what are the chances that a voluble self-promoter like Jerry Jones, who cannot publicly keep quiet about the anthem protest, and who is now busy claiming that Pappa Johns’ founder John Schattner is a “fine American”, kept quiet privately about Colin Kaepernick?
I assess those chances as somewhere between diddly and squat. Ditto Bob McNair, whose “inmates running the prison” comment maybe revealed a lot more about his underlying attitude to players than he intended or wanted to reveal. Robert Kraft was probably a lot more careful. He is usually very measured in all of his public pronouncements, and, by all accounts, has been a key figure behind the scenes in mediating disputes between owners and between the NFL and the players. But Jerry Jones? No. Jones cannot stop yapping in public, so I regard it as highly likely that he has said some things in private that Kaepernick’s legal team would love to read and/or hear. That is, if they can be included in discovery.

With the expiry of the trade period in the NFL, any team needing a quarterback can only sign a free agent.
Yesterday, the Indianapolis Colts officially owned up to something that was becoming rather obvious – that Andrew Luck will not play this season. He underwent major shoulder surgery in the off-season and has not recovered enough to even practice properly. The Colts had already traded for Jacoby Brissett from the Patriots to be their starting quarterback for the season, so this does not impact any free agent moves.
Meanwhile, down in Houston, DeShaun Watson, the new starting quarterback for the Houston Texans, ruptured his ACL in practice yesterday and will miss the rest of the season. The Texans have Tom Savage as a backup, who was benched after 1 game for Watson. Watson is a running quarterback whose playing style is close to that of a free agent quarterback named Colin Kaepernick. However, at time of writing, the Texans appear to be about to sign another free agent not named Kaepernick.
These kinds of decisions by NFL teams are simply adding to the pile of circumstantial evidence that will be pointed to by Kaepernick’s legal team as evidence of collusion. There still needs to be a “smoking gun” uncovered in discovery for a ruling of collusion to be possible, but even if the arbitrator rules against Kaepernick, the overall impression of a sports league bent on punishing a player engaging in peaceful protest is likely to be difficult to ignore.

When I wrote the essay on the Mark Geragos claim that Colin Kaepernick would be signed within 10 days, I was discounting (for now) the possibility that the weight of circumstantial evidence would become too great for the arbitrator to dismiss it.
I may be about to revise that viewpoint. The NFL is constantly adding to the pile of circumstantial evidence.
Two attempted quarterback trades occurred at the trade deadline. The 49ers succeeded in acquiring Jimmy Garroppolo from the Patriots. Then an apparent fiasco unfolded right at the trading deadline, with the Cleveland Browns attempting to acquire A.J. McCarron from the Bengals for draft picks, only to have the trade fail to complete, seemingly due to internal SNAFUs in the Browns organization.
From the viewpoint of Kaepernick’s legal team, here are two more clear examples of teams with a quarterback performance issue desperately trying to find another starting quarterback without even asking Colin Kaepernick if he was interested.
The situation will now only get worse for the NFL. With the trade deadline now having passed, if an NFL team loses its starting quarterback to injury, or suddenly becomes desperate for a new option at quarterback, they cannot now trade for a quarterback from another team. They have to sign a free agent, or (far less likely) win a waiver claim contest for a quarterback suddenly released from a team. (That latter scenario is extremely unlikely, since most NFL teams only have 2 quarterbacks on their rosters, and they would not release a quarterback in the season since it would leave them with no backup quarterback in a game).
Colin Kaepernick is a free agent.
So…from this point onwards in the season, any team that signs a free agent quarterback not named Colin Kaepernick is simply adding to the pile of circumstantial evidence that Kaepernick’s legal team will point to as evidence of collusion.
Another underlying challenge in all of this is that Roger Goodell is relatively powerless to influence NFL team behavior. He works for the teams, not the other way around, and since NFL teams are officially forbidden from colluding on any issue other than broadcasting rights, Goodell is now unable to say anything of substance on the Colin Kaepernick issue, especially now it is the subject of a lawsuit, since anything that he does say can be parsed though a viewpoint that asks the question “so were the teams colluding?”. This, by the way, is also why Goodell spoke very carefully about the anthem protests. He cannot be seen to be suggesting to the teams, collectively, what they can or cannot do, and in the case of the anthem issue, his hands are also tied by the CBA, which does not specify any requirements on player behavior for the National Anthem.

I decided to go read the NFL Collective Bargaining agreement, under which Colin Kaepernick has filed a grievance alleging collusion to deny him employment.
The short answer to my questions is that the bar is set pretty high for a finding of collusion, but that if collusion is found to be widespread, the NFLPA can indeed file to terminate the entire CBA.
The CBA contains an entire section on collusion: ARTICLE 17 – ANTI-COLLUSION begins on page 119.
The probable grounds on which Kaepernick is claiming collusion are almost certainly defined in Section
17 (Prohibited Conduct):

(a) No Club, its employees or agents shall enter into any agreement, express
or implied, with the NFL or any other Club, its employees or agents to restrict or limit
individual Club decision-making as follows:
(i) whether to negotiate or not to negotiate with any player;
(ii) whether to submit or not to submit an Offer Sheet to any Restricted Free
Agent;
(iii) whether to offer or not to offer a Player Contract to any player…

The enforcement mechanism is defined in Section 5:

Section 5. Enforcement of Anti-Collusion Provisions: Except as provided in Section
16(d) below, any player or the NFLPA, acting on that player’s or any number of players’
behalf, may bring an action before the System Arbitrator alleging a violation of Section 1
of this Article. In any such proceeding, the Federal Rules of Evidence shall apply. Issues
of relief and liability shall be determined in the same proceeding (including the amount
of damages, pursuant to Section 9 below, if any). The complaining party shall bear the
burden of demonstrating by a clear preponderance of the evidence that (1) the challenged
conduct was or is in violation of Section 1 of this Article and (2) caused any
economic injury to such player(s).

The important things to note here are that (1) this is not a court hearing before a judge or a jury; it is an arbitration hearing. (2) the Federal Rules of Evidence apply. This means that full Discovery is allowed as part of a pre-hearing process. (3) the burden of proof is not a criminal burden (beyond “reasonable doubt”) but the civil standard (“clear preponderance of the evidence”).
The remedies for a finding of guilt, however, extend beyond the matter of monetary damages to the player. The ultimate sanction is contained in this section:

Section 16. Termination: The NFLPA shall have the right to terminate this Agreement,
under the following circumstances:
(a) Where there has been a finding or findings of one or more instances of a
violation of Section 1 of this Article with respect to any one NFL season which, either
individually or in total, involved five or more Clubs and caused injury to 20 or more
players; or
(b) Where there has been a finding or findings of one or more instances of a
violation of Section 1 of this Article with respect to any two consecutive NFL seasons
which, either individually or in total, involved seven or more Clubs and caused injury to
28 or more players. For purposes of this Subsection 16(b), a player found to have been
injured by a violation of Section 1 of this Article in each of two consecutive seasons shall
be counted as an additional player injured by such a violation for each such NFL season;
or
(c) Where, in a proceeding brought by the NFLPA, it is shown by clear and
convincing evidence that 14 or more Clubs have engaged in a violation or violations of
Section 1 of this Article causing injury to one or more NFL players.
(d) In order to terminate this Agreement:
(i) The proceeding must be brought by the NFLPA;
(ii) The NFL and the System Arbitrator must be informed at the outset of
any such proceeding that the NFLPA is proceeding under this Section for the purpose
of establishing its entitlement to terminate this Agreement; and
(iii) The System Arbitrator must find that the Clubs engaged in willful collusion
with the intent of restraining competition among teams for players.

Clearly, with only one player grievance, the only grounds on which the NFLPA could apply for the termination of the CBA would be that laid down in Article c (collusion among 14 or more NFL teams). That seems, at first reading, to be a pretty high bar to clear in terms of evidence.
You will also notice that the NFLPA must state before the hearing that they intend, if successful, to apply for the termination of the CBA. They can’t turn around later if the hearing finds in favor of Colin Kaepernick, with proof of more than 14 clubs colluding, and then say “OK now we won, we are terminating the CBA”.

So, there is a spectrum of possible outcomes:

1. Special Arbitrator finds no compelling evidence of collusion; grievance is denied
2. Special Arbitrator finds compelling evidence of collusion among multiple teams, but less than 14 teams are involved; finds in favor of Kaepernick
3. Special Arbitrator finds compelling evidence of collusion among 14 or more teams; finds in favor of Kaepernick and nullifies the CBA IF the NFLPA had requested it as part of the hearing process

I still regard (1) as the most likely outcome, unless a “smoking gun” emerges in the form of informal communications between teams, coaches and/or the NFL. Absent any smoking gun evidence, it will be down to circumstantial evidence, which is unlikely to be compelling enough. Correlation does not equal causation, as the old saying goes. At that point, it then becomes a “court of public opinion” fight.
If (2) is the outcome, the NFL will be on the hook for (I am guessing) up to $50m in damages or more, with a significant public dent in its reputation.
(3) is the NFL’s worst nightmare – the premature end of the CBA, requiring a new CBA negotiation. The current CBA, which is a 10 year agreement with no opt-outs, is generally regarded as more generous to the owners than the previous CBA, which the owners had voided after 3 years in order to force a negotiation for a better deal for them, threatening a lockout as part of the negotiations. The NFLPA is unlikely to be feeling as generous next time around, especially given the strife over the conduct policy enforcement, and things could get messy in a hurry.