The Latest Wrinkle in Colin Kaepernick’s Collusion Case: Polling Data?

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These days, when someone hears about an influential D.C. lobbying firm and its possible ties to “collusion,” their first thought probably isn’t about the NFL.

And, yet, here we go: according to a report by Charles Robinson of Yahoo Sports, the NFL last summer retained The Glover Group to survey fans’ opinions on a range of topics impacting the league’s image. Three of those topics were whether fans: 1. Believed that Colin Kaepernick should have been signed; 2. Attributed Kaepernick’s unemployment to his national anthem protests or to football-related factors, such as Kaepernick’s relative skills, salary demands or age; and 3. supported the NFL disciplining players who protested during the playing of the anthem. Data collected on these topics was organized by demographic categories and then shared with NFL commissioner Roger Goodell and other league officials.

As a point of context, the survey occured about four months after Kaepernick became a free agent on March 1, 2017. Kaepernick’s free agency occurred by choice, as he opted out of his contract with the San Francisco 49ers—giving up $14.5 million in injury guarantees (media reports indicate the 49ers would have cut Kaepernick had he not opted out). Surprisingly, Kaepernick—whose 91% QB rating in the 2016 season eclipsed that of Carson Wentz, Eli Manning and Joe Flacco—then found himself shut out of any interest from any teams.

By March 24, 2017, less than a month after Kaepernick hit free agency, rumors surfaced that he might be the target of collusion. This theorized collusion was linked to controversy stemming from Kaepernick’s kneeling during the playing of the national anthem.

Still without any interest from NFL teams, Kaepernick filed his collusion grievance on Oct. 15, 2017. The grievance remains under review by neutral arbitrator (and University of Pennsylvania law professor) Stephen Burbank.

While the word “collusion” has recently taken on political significance in the United States, its meaning in the context of the NFL is defined by the collective bargaining agreement. Collusion refers to two or more teams, or the NFL and at least one team, conspiring to deny a player of a collectively bargained right. For Kaepernick (and also his former 49ers teammate and fellow anthem kneeler Eric Reid) that right is the right to sign with an NFL team.

If Kaepernick can show by clear and convincing evidence that the NFL conspired with at least one team to deny him a chance to sign, Kaepernick would be poised to win his collusion grievance. This is where the Glover Group’s polling data potentially becomes meaningful.

To be clear, the NFL commissioning a poll on fan attitudes is not, by itself, evidence of collusion. Collusion requires a conspiracy or arrangement between multiple actors governed by the CBA—the NFL and a team, or two or more teams—to deprive a player of a collectively bargained right. It is certainly within the NFL’s rights to better understand its consumers and their preferences, including on divisive topics like national anthem protests. Doing so helps the league maximize profits, a goal the NFL has every right to pursue. Along those lines, the NFL choosing to retain a prominent D.C. firm run by its then-communications chief, former White House press secretary Joe Lockhart, was certainly lawful. Likewise, the NFL and the Glover Group working together on a project related to national anthem protests was not collusion—it was simply one business and one that business’s consultant firms collaborating on a project.

The problem for the NFL would be if the league took data and recommendations provided by the Glover Group and then, as part of a plan to address Kaepernick, shared them with teams or used them to influence how teams perceived Kaepernick. If those types of activities occurred, there would be potential evidence of a coordinated effort by the league and at least one team to influence Kaepernick’s opportunities to sign. This scenario would greatly bolster Kaepernick’s grievance.

Such a scenario is also hardly far-fetched. As shown in their October 2017 meeting with players and league officials, a number of team owners were openly worried about President Donald Trump’s intense criticisms of Kaepernick and how the league responded to Kaepernick. Owners are mindful of Trump warning the NFL that he recommends that teams should not receive favorable tax treatment in their stadium deals. Trump has also encouraged fans to tune out from games if teams and the league don’t discipline protesting players. Consistent with this pattern, the President on Thursday praised the NFL’s new national anthem policy in his comments to Fox and Friends.

As recently detailed on The MMQB, attorneys for Kaepernick have deposed approximately 15 owners of NFL teams. Those depositions, as well as any accompanying physical and electronic evidence, could shed light on whether the NFL shared data and whether such sharing influenced teams in how they perceived Kaepernick.

The MMQB will keep you updated on further developments.

Michael McCann is SI’s legal analyst. He is also the Associate Dean for Academic Affairs at the University of New Hampshire School of Law and co-author with Ed O’Bannon of the new book Court Justice: The Inside Story of My Battle Against the NCAA.

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