By: Jonathan Manoy, Member-Candidate, J.D. Candidate, May 2020, St. Thomas University School of Law.

On August 14, 2016, Colin Kaepernick, in a San Francisco 49ers pre-season game, sat during the National Anthem. This move set the stage for the silent protest movement that gained numerous followers and became so controversial during the 2016-17 N.F.L. season. Kaepernick explains his decision to kneel as a stance for social change. He reasons that many in this country are oppressed and do not have a voice, therefore, he wanted to use his platform, the National Football League, to be a voice of these individuals and ultimately push for a change in our society. However, many saw this movement not as a protest, but as a lack of respect for those who individuals who fought and sacrificed their lives for our country.

            Kaepernick completed the 2016-17 regular season with the San Francisco 49ers and in March of 2017, opted out of the final year of his contract with 49ers making him an unrestricted free agent. Since Kaepernick’s decision to enter free agency, he has yet receive an offer from any team in the National Football League. Kaepernick, a 6-year veteran who led the 49ers to a Super Bowl in his second season is now out of a job, with no offers on the horizon.

As a result, in October of 2017, Kaepernick filed a grievance of collusion against owners of the National Football League. In order for Kaepernick to prove collusion, he would need to prove by the standard of “clear preponderance of the evidence” that either a team and the league or two or more teams or the league colluded in keeping him out of the N.F.L. Recently, Denver Broncos owner, JohnElway, stated that Kaepernick was offered a position in 2016 with the Denver Broncos, but Kaepernick turned that offer down. Although many think this would be sufficient to disprove collusion, the main factor that makes this offer irrelevant and outside of the scope of this case is that the offer was made in April of 2016, prior to Kaepernick’s controversial protest. As such, the issue of collusion could not have arisen earlier than Kaepernick’s first protest during the anthem on August 14, 2016, and any offer prior to that would not affect Kaepernick’s grievance. Additionally, even if an offer was made subsequent to the initial protest, Kaepernick can still potentially prove conspiracy to collude if there was more than one team working together in an effort to keep Kaepernick out of the league, even if others were not.

            Kaepernick’s biggest hurdle is not the Denver Broncos 2016 offer, but the fact he must prove collusion with actual evidence such as an “email, text, social media message, video, audio recording, hand-written note or sworn testimony from a witness” SI. Even though metrically speaking looking at the statistics, Kaepernick is still worthy of a spot on an N.F.L. roster and that it can be proven that Kaepernick is objectively better than other quarterbacks in the National Football League that have been offered contracts, the form of proof would be insufficient and would therefore fail.              Currently, the case is in front of an arbitrator and a full hearing is scheduled to determine whether or not the National Football League or its owners colluded against Kaepernick. If he can successfully prove his case, Kaepernick would been titled to both compensatory damages and punitive damages. The compensatory damages stem from his actual injury i.e. the money he would’ve earned form a contract had there has been no collusion, and punitive damages stemming from the collective bargaining agreement. If Kaepernick fails to prove collusion and the arbitrator rules in favor of the National Football League, Kaepernick can petition a federal judge to vacate the decision of the arbitrator and bring the case in Federal court. However, not too many individuals have had success at petitioning a reversal from a federal judge.