11:25, October 17 333 0 abajournal.com

2017-10-17 11:25:05
Colin Kaepernick’s grievance alleges collusion; does Trump threat give players free-speech claim?

Colin Kaepernick’s grievance against the NFL claims all 32 teams colluded to keep him out of the league.

Lawyer Mark Geragos filed the grievance under the union’s collective bargaining agreement with the league, report the New York Times, the Los Angeles Times and Forbes, which describes Geragos as “a world-renowned criminal defense attorney.”

President Donald Trump has criticized Kaepernick’s decision to kneel during the national anthem, Geragos noted in a statement. Athletes “should not be denied employment based on partisan political provocation by the executive branch of our government,” the statement said. “Such a precedent threatens all patriotic Americans and harkens back to our darkest days as a nation.”

Kaepernick became a free agent after opting out of his contract with the San Francisco 49ers. No other team has taken him on, even though he threw 16 touchdowns last year. The statistics put his capabilities on par with, or better than, more than a dozen NFL quarterbacks who started this year, according to the Los Angeles Times.

The alleged collusion is likely based on the NFL collective bargaining agreement, rather than the Sherman Antitrust Act, according to a different Forbes article written by lawyer Marc Edelman of Edelman Law. The remedy is double compensatory damages.

Geragos will likely seek written evidence, perhaps even text messages, to bolster the claim. “Without strong evidence to the contrary,” Edelman says, “the NFL team owners may be able to make a persuasive case that each team found that Kaepernick, with his anthem-related baggage, was simply not worth his asking price.”

If the NFL were to force players to stand for the national anthem, they could have a First Amendment claim against the government because of a Trump tweet, the Washington Post reports. Trump had tweeted that tax breaks should be revoked for a league that disrespects “our anthem, flag and country.” A Trump spokesperson later said Trump was referring to tax breaks for team stadiums.

David Cole, the national legal director for the American Civil Liberties Union, said it is ready to defend the rights of players to express themselves. “The courts have recognized that when government officials threaten punishment or consequences because of protected speech, that in and of itself can chill the speech, in violation of the First Amendment,” Cole said.

The Post article acknowledges it could be difficult to show a link between any NFL action and Trump’s threat. Among those who expressed double about such a claim was Harvard law professor emeritus Alan Dershowitz.

“It takes more than a mere threat for a presidential statement to become state action,” he said. He also saw a free-speech danger for the president if the players were to succeed. “It would place constraints on the ability of the president to have a bully pulpit, whether he were a Democrat or a Republican,” Dershowitz said.

Players may not have a claim against the NFL, either, according to Georgetown law professor Brad Snyder. He point to language in the collective bargaining agreement that says players can be fired for “personal conduct reasonably judged by club to adversely affect or reflect on club.”

Geragos & Geragos official statement on @Kaepernick7 who we are proud to represent pic.twitter.com/c0Jr1ugNV1