Former San Francisco 49er Colin Kaepernick Files Grievance Against NFL

NPR's Mary Louise Kelly speaks with Michael McCann of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law about the latest move by former San Francisco 49ers quarterback Colin Kaepernick. He has filed a grievance against the NFL claiming he is the victim of a group boycott by team owners punishing him professionally for his political views.

MARY LOUISE KELLY, HOST:

Despite pressure from some fans and owners, the NFL will not change its policy to require players to stand during the national anthem. In a press conference today, NFL Commissioner Roger Goodell said league leaders are listening to the players and the social injustice issues they're raising.

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ROGER GOODELL: I think we have a great opportunity here with our players to really work together and to try to help and make differences in our community.

KELLY: Still, there are consequences for players who participate in protests. Jerry Jones, owner of the Dallas Cowboys, has said on his team, players who don't stand don't play. And Colin Kaepernick, the former San Francisco 49ers quarterback who started the protests, says his political stance is being used to keep him out of a job. He filed a grievance this week alleging collusion in the NFL to punish him and discourage other players from following his example.

So does Kaepernick have a case? We put that question to Michael McCann, founder of the Sports and Entertainment Law Institute at the University of New Hampshire.

MICHAEL MCCANN: He might, but he needs evidence. He has to show that two or more teams or the league and at least one team have conspired in some way to deprive him of a collectively bargain right. And here, that right is the right to sign with an NFL franchise. It can't be mere suspicion. It can't be inference. There has to be some type of evidence that connects the dots. So whether that's an email, a text message - we don't know if he has anything that hasn't yet been established.

KELLY: Does the fact that he's filed a grievance at all suggest that his lawyers think he's got something?

MCCANN: It does. It's very possible he has something. Whether it means what he thinks it means, we don't know. But I think it's fair to say that there must be some type of evidence in his possession in order to pursue such a grievance.

KELLY: And just to be clear, he doesn't have to prove every NFL team was conspiring and colluding, just two, right?

MCCANN: That's exactly right. He only needs to prove two teams conspired against him or one team and the league. So the threshold is not a league-wide conspiracy. That makes it a little bit more obtainable to show a collusion took place.

KELLY: At the heart of his grievance is this claim that he is being denied employment with the NFL for which he is eminently qualified. We've come to you because you're a lawyer, but you also write for Sports Illustrated. You follow the NFL closely. Is he eminently qualified? I mean, is he a good quarterback?

MCCANN: He is a good quarterback. I think most football coaches would say he is good enough to be in the league. This is a player that earlier on in his career was quite good. He was one of the better quarterbacks in the NFL. He has tailed off somewhat, but he has clearly had a good track record. It's not as good of a track record as other quarterbacks. He's not Tom Brady. But a good argument could be made that he is better than certainly a good number of backup quarterbacks in the NFL and perhaps some of the starting quarterbacks as well.

KELLY: If he succeeds, if Colin Kaepernick does in fact have some kind of damning evidence, he will win damages. How much money are we potentially talking?

MCCANN: He could become the highest-paid quarterback in the NFL if he wins a collusion case. And I say that because if he shows that but for collusion he would have earned, say, $12 million, he'll get 12 million in compensatory damages because that's what he would have earned plus double that amount in noncompensatory, meaning he'll get 36 million.

KELLY: So potentially on the line here is a lot of money, but what about the right to play? Is there any legal remedy that could force owners to let him play?

MCCANN: No. There's no legal remedy where a judge is going to say X team must take Colin Kaepernick.

KELLY: So from a legal point of view, one possible outcome here is Colin Kaepernick could be out of the NFL for good.

MCCANN: It is possible. And one might wonder if bringing a collusion grievance makes him less popular among teams. But you know, let's play it out. Let's see what happens.

KELLY: Michael McCann, thanks so much.

MCCANN: Thank you.

KELLY: That's Michael McCann of the University of New Hampshire Law School, where he founded the Sports and Entertainment Law Institute.

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