Evaluating Colin Kaepernick’s Settlement: What Could It Mean for the Future? - Fordham Intellectual Property, Media & Entertainment Law Journal
25537
post-template-default,single,single-post,postid-25537,single-format-standard,ajax_fade,page_not_loaded,,select-theme-ver-3.3,wpb-js-composer js-comp-ver-6.0.5,vc_responsive
 

Evaluating Colin Kaepernick’s Settlement: What Could It Mean for the Future?

Evaluating Colin Kaepernick’s Settlement: What Could It Mean for the Future?

Last month, it was announced that Colin Kaepernick, Eric Reid, and the National Football League (NFL) came to a settlement agreement regarding Kaepernick’s grievance against the NFL, alleging the owners colluded to prevent him from signing with a team.1 It was widely expected that Kaepernick’s case would be adjudicated in binding arbitration, per the collective bargaining agreement reached by the NFL and NFL Players’ Association.2 The terms of the settlement are confidential, and both parties are bound by a non-disclosure agreement, so it is unlikely – if not impossible – that the terms of the settlement will ever be revealed.

In addition to being contrary to the expectations of many, the fact that the NFL was willing to settle Kaepernick’s collusion case was rather surprising, as collusion is often hard to prove.3 The NFL’s settlement with Kaepernick, however, could be due partially to the arbitrator’s initial ruling in August 2018 against the NFL in its motion to dismiss the case. In so ruling, the arbitrator held that Kaepernick raised a genuine issue of material fact with regard to his claims of collusion. Such a ruling in arbitration equates to a federal court denying a Federal Rule 12(b)(6) motion for failure to state a claim.4 With Kaepernick’s case headed to a more open proceeding, the NFL might have wanted to avoid publicizing sensitive information, such as comments or statements by owners that, while potentially not a smoking gun in favor of Kaepernick, could still harm the NFL’s already precarious public image. Though the result, having been obtained through an arbitration proceeding, would not have the precedential value of a judicial decision, the NFL likely sought that arbitration to avoid setting a collusion precedent in the event they lost to Kaepernick. Potentially paying him what he arguably should have earned as a player was a much more preferable option for the owners and NFL than having their signing practices aired to the public.5 Some have declared the NFL’s decision to settle a win for Kaepernick.6

Interestingly, Kaepernick did not involve the NFL Players’ Association in bringing his grievance.7 Though he was mandated by the collective bargaining agreement to undergo the union’s agreed-upon process—here, arbitration—Kaepernick could hire his own legal team. He hired Mark Geragos and apparently did not include the union in any of his planning.8 The union released a statement after it was announced that a settlement had been reached, noting that it was not privy to the details of the settlement.9 It will be interesting to see how the union handles future grievance processes in successive collective bargaining agreements, as it likely was unhappy with its inability to influence the way Kaepernick settled. The union would presumably have loved a precedent-setting decision against the NFL, even if it went against Kaepernick’s personal financial interests.

 


  1. Kevin Draper and Ken Belson, Colin Kaepernick and the N.F.L. Settle Collusion Case, The N.Y. Times, Feb. 15, 2019, https://www.nytimes.com/2019/02/15/sports/nfl-colin-kaepernick.html (last accessed Mar. 5, 2019). [https://perma.cc/95CZ-SDB9]

  2. Id.

  3. Id.

  4. See id.

  5. Andrew Brandt (@AndrewBrandt), Twitter (Feb. 15, 2019, 4:23 PM), https://twitter.com/AndrewBrandt/status/1096520415168679936. [https://perma.cc/NFL7-WE73]

  6. See Jonathan Jones, The Kaepernick Settlement: Why Measuring Victory Has Nothing to Do With a Dollar Amount, Sports Illustrated (Feb. 19, 2019), https://www.si.com/nfl/2019/02/19/colin-kaepernick-eric-reid-collusion-settlement?utm_medium=social&utm_campaign=themmqb&utm_source=twitter.com. [https://perma.cc/B2MB-CHLU]

  7. NFLPA (@NFLPA), Twitter (Feb. 15, 2019, 2:11 PM), https://twitter.com/NFLPA/status/959183537554509825. [https://twitter.com/NFLPA/status/959183537554509825]

  8. Id.

  9. Id.

Bernard Olshansky

Bernie Olshansky is a second-year J.D. candidate at Fordham University School of Law and a staff member of the Intellectual Property, Media and Entertainment Law Journal. He is also the Vice President of the Fordham Law Food Society. Bernie holds a B.A. in Law, Societies and Justice from the University of Washington.