Kaepernick vs. the NFL and The First Law Of Holes
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.