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Legally Speaking: Kaepernick faces tough road in NFL collusion case

(AP Photo/Tony Avelar File)

The battle between the National Football League and President Donald Trump has touched every team, including our Arizona Cardinals.

What started with Colin Kaepernick, the former quarterback of the San Francisco 49ers, making a one-man statement against police treatment of minorities has morphed into a nationwide discussion, argument and movement.

The Cardinals have not been immune from the tidal wave and have been attempting to deal with it in their own way.

Earlier in the season, Trump lined the NFL up in his sights and commenced his typical Twitter storm against the players who were kneeling for the national anthem. This prompted heated and passionate debates amongst Americans, NFL players and owners, raising many questions:

  • Are players allowed to do this? Arguably, yes
  • Should they be allowed to do this? That is subjective and up to you to decide how you feel
  • What should/can owners and coaches do? Good question
  • What should/can the NFL do? A better question

Then, just when there was a possibility of the ire dying down, at least a little bit, Kaepernick filed a grievance under the Collective Bargaining Agreement for collusion.

This grievance is arguably grounded in his actions of kneeling in protest during the national anthem last year. You can separate these two issues — collusion and protesting — but they really intersect, both at the beginning and currently, so let’s go through them, #LegallySpeaking.

Under federal law, the National Labor Relations Act, the players arguably have the right to protest by kneeling during the national anthem, regardless of how the owners, the public or other players may feel about it.

If the protesting players can show that, their actions are conducted in concert with coworkers (in other words, more than one person must do it), address an issue of relevance to their job as players and they carry out their protest/actions by using appropriate means.

If those standards are met, then they have the right to kneel in protest. Their actions are legally protected in a court of law, but as you know, the court of public opinion can have greater consequences — positive or negative.

I have been to a couple of the Arizona Cardinals games this season and have seen players from other teams kneeling.

What I did notice — which I took as a direct response to the protests and need for players to have a voice — was a 30-second message on the big screen. During the game, the Cardinals played a vignette describing that the ownership supports its players and the movements/causes that are close to their hearts and will give them a platform to educate the fans.

Later, a vignette was shown of a player discussing a charity that was important to him. Although I am not happy with all the decisions the organization has made, I was pleased to see our team taking this approach. As I tell my students, you catch more flies with honey than vinegar.

Instead of the Cardinals trying to hush up the players or take their platforms away from them, the Cardinals are encouraging and supporting our players in their passions and beliefs. That makes me a proud fan.

Now, let’s look at the person who started this controversy of kneeling during the national anthem. Kaepernick has filed a grievance with the NFL. I have not seen his actual grievance, but it is easy to deduce that it is based in the fact that he opted out of his contract with the 49ers last March and has not yet been picked up by a team in the NFL.

To prove collusion, Kaepernick has to basically prove that, within the last 90 days, at least two teams, or the NFL and a team, made an agreement to blackball him and keep him out of the league.

Under the CBA, he has to prove to an independent arbitrator (not Commissioner Roger Goodell) by clear preponderance of the evidence there was a conspiracy to keep him out of the NFL. He has to have actual hard evidence — a letter, a recorded conversation, a witnesses willing to testify, a text message, an email or the like that shows he was blackballed.

The fact that he thinks there was a conspiracy is not enough, the fact that there may be racial discrimination is not enough, the fact that he still has skills is not enough, the fact that others are playing that are worse than him is not enough. He needs a smoking gun.

Good luck.

A team is not required to hire you just because you are a good player. If you are a distraction, if you are outspoken or if you come with baggage, an owner can refuse to hire you. And, coincidentally, those are some of the reasons teams have given in not hiring Kaepernick.

If Carson Palmer or Drew Stanton get hurt and the Cardinals want to pick up another QB to have along with Blaine Gabbert, they are not required to hire Kaepernick, even if he is better than all of them.

That being said, if Kaepernick is successful, the entire CBA can be terminated because there is a provision inside it that says it only takes one proven case of collusion.

Will that happen? Possibly, but a lot of things would have to happen to get to that point. In reality, the parties, and especially Goodell, would likely settle before they would let it all disintegrate in front of their eyes.

What does all this mean #LegallySpeaking for our Arizona Cardinals? It means that owner Michael Bidwell, General Manager Steven Keim and head coach Bruce Arians must allow the players to protest as long as they do so appropriately.

It also means they should stay as far away from Kaepernick as possible, not because he was protesting, but because now he really is a distraction.

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