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Major League Baseball is Key for Kaepernick

November 4, 2017

 

How can Colin Kaepernick win? Doesn’t he need concrete proof that owners worked together to keep him out? If you’re having a hard time wrapping your head around how Colin Kaepernick can prove collusion, all you have to do is time warp back to the 80s, the answers are there.

 

According to discussions with multiple sources, it’s become crystal clear that absent a smoking gun, Colin Kaepernick’s grievance arguments will mirror the arguments that helped Major League Baseball Players win a line of collusion cases in the 80s. There are so many parallels; it’s almost like history repeating itself. Check it out. 

 

The absence of offers

 

Flashback to around 1986.  Tim Raines is a star left fielder for the Montreal Expos and one of the best leadoff hitters in baseball history. He’s only 27 and at the peak of his career he files for free agency after a standout season.  His entrance to the free market should’ve been met with a red carpet rollout. It should’ve sparked a massive bidding war. Raines should’ve been making loot, but no one made him a serious offer- no one except his old club.

 

Raines was one of many talented players who entered the free market in the 80s only to end up back with their old clubs.

 

Take Kirk Gibson…a star player from the Detroit Tigers who also hit the free market in the mid 80s. Much like Kaepernick, a few teams initially pursued him but they suddenly dropped off and in the end Gibson received no offers. The market was as dry as the desert. Average player salaries started to decrease and club revenues began to rise.

 

That is, until the Major League Players Association (the union) filed several collusion grievances and won them ALL.  Arbitrator after arbitrator decided that club owners colluded. Their plot was a “gentleman’s agreement” (a wink and a nod) to NOT hire other teams’ players and in effect keep player salaries down.

 

In the Gibson case, the initial attention and then peculiar backing off from several teams drew the ire of the arbitrator in one of the MLB collusion cases. In a 1987 ruling in favor of players, an arbitrator wrote that despite players having a value at some price “no offers were advanced.” The lack of any offer whatsoever for a player who would’ve normally been offered something by someone demonstrated that the actions of club owners were damaging the normal operation of a free market. 

 

Flash-forward and its 2017, NFL quarterbacks are dropping like flies. Aaron Rodgers, Deshaun Watson, Andrew Luck --all out.  Yet Colin Kaepernick lingers outside the sidelines and he’s not even getting a try out.  Many say Kaepernick is without a doubt a starter and should've been signed by now. Others argued at the start of the season that Kaepernick wasn’t getting signed because he just wasn’t good enough, but as quarterback after quarterback gets injured, Kaepernick’s collusion case gets stronger and stronger. He may not be the best, but at this point he’s arguably better than many of the newly signed QBs occupying backup positions and thinks he’s surely qualified to become a backup once those backups replace injured starters.

 

In the 80s, the mere “absence of offers” was a big part of the MLB collusion cases. It served as proof that owners “understood” not to hire certain players. This “understanding” was not express, it was implied. The NFL’s CBA also allows a player to win a collusion case by proving “implied agreement.” What does that mean? It means Kaepernick can prove that there’s a coordinated pattern of behavior by owners and its effecting his ability to survive in the free market.

 

Much like today, there were news headlines back then, such as “Why won’t anyone sign Kirk Gibson?” Today we see those types of headlines with respect to Colin Kaepernick. The commentary from well-known sports writers who are scratching their heads, can also serve as evidence in Kaepernick’s case.

 

Secret owner communications

 

The MLB players did not present direct evidence of owners saying not to hire Player A or B. They did present evidence of messages that communicated that point without directly communicating it. That’s what Kaepernick is going to try to do. He will use public messages from owners and the NFL to create a storyline of an unspoken “gentleman’s agreement.”

 

Here's how. 

In the 80s, baseball owners held a series of meetings to discuss “fiscal responsibility” (aka how can we save money?). At these meetings there were comments by some owners bemoaning that players wouldn’t play as well after signing long-term contracts and griping about how players would get injured but then still make a lot of money and get paid to sit on the bench.  The owners didn’t expressly say, on the record, ‘hey everyone, don't sign eachothers’ players and stifle the free agency market so we can keep salaries low.’ But, arbitrators still found that the meetings and the suggestive comments during those meetings created an understanding among owners about what needed to be done for everyone to keep club profits high.

 

Kaepernick’s team will likely compare those MLB meetings to the NFL owner meetings discussing the national anthem “controversy” and how to resolve it.  They’ll reference comments made by Bob McNair about not letting “the inmates run the prison,” and comments from Jerry Jones.  The influence exacted by owners upon their colleagues will set the tone for Kaepernick’s collusion case.

 

When 80s baseball club owners thought salaries were rising too high and it was a problem, they acted together to fix it. Here, Kaepernick will argue that it’s the same scenario. He will allege that even though kneeling and exercising his first amendment right to peacefully protest is not wrong, the owners view it as a “problem” or “controversial” and therefore, not hiring him is the solution.

 

The MLB Association won on a similar ground. They demonstrated that owners shared a belief, and that their collective and skewed perception was a result of being influenced by powerful owners and the League’s commissioner.  In the MLB case, research showed that the notion that a player performed worse after signing a long-term contract was a fallacy. But the owners believed that fallacy because of messages from one another and sought to fix it. Think about it like a brainwashing argument.

 

If owners think that hiring Kaepernick will hurt their bottom line or bring controversy to their ball club, Kaepernick will argue that this is a faulty perception, borne from fear. He will argue that other owners like Jerry Jones, Bob Kraft and Bob McNair created this culture of fear among owners. According to Kaepernick’s grievance, Jones & Kraft took their cues from President Trump and his influential messages to fire those who kneel. His grievance calls this a top down effort to retaliate. 

 

The leaders of the pack

 

Much like Jerry Jones... in the 80s, it was former MLB Commissioner Bud Selig who was accused (by former MLB Commissioner Fay Vincent and others) of corralling owners and being a major powerbroker of "collusive efforts."  At the time, Selig was the owner of the Milwaukee Brewers but also allegedly challenged the power of then Commissioner Vincent. This story sounds a lot like allegations that Jerry Jones is taking Roger Goodell to task over issues like his Anthem policy and his fitness as Commissioner. Jones and Selig are two of the most influential, aggressive and opinionated owners in sports history and both were accused of being central to collusion. 

 

Just this week, reports surfaced accusing Jones of working in tandem with powerful NFL sponsor Papa Johns pizza to spread a message that the NFL is not adequately addressing player protests and it could affect sponsorships. 

 

Why is this relevant?

 

Kaepernick will likely say that Jones is using his power and influence over sponsors to pressure owners to support his stance that players should stand for the Anthem (Jones has a financial stake in the pizza chain and they sponsor a majority of NFL clubs, including the Cowboys).

 

Sources say Kaepernick’s team is already investigating how owners may be influencing potential sponsors and in turn using that source of revenue to influence the actions of other owners.

 

The message from the top

 

Finally the most powerful voice of them all: Roger Goodell. Sources say he will be a focus of the collusion case.  Kaepernick will likely point to comments made by Commissioner Goodell in his memorandums. For example, when Goodell was considering a new policy requiring players to stand during the National Anthem. He will argue that these suggested policy changes reinforce the “understanding” among owners that they should not hire someone who kneels. He will say the effect of this collective “understanding” is that he can’t get hired. Therefore, implied collusion is in the air and infecting the free market.

 

In the 80s, MLB Commissioner Peter Ueberroth addressed club owners in St. Louis and said owners were “damned dumb” for waging millions on players and losing money to get a chance at winning a World Series. He also said signing long-term contracts was “not smart.” He didn’t directly tell owners not to sign free agents to long-term, high-salaried contracts. But, what he said was enough to support collusion because it implied a course of action and came from a person in a position of power. 

 

The defense

 

When it came to the MLB collusion cases, owners denied any collective effort to not sign free agents from other ball clubs. They claimed that each individual team just decided to be more “fiscally responsible.” Arbitrators didn’t buy it.

 

The MLB Players Association argued that the owners’ behavior amounted to a boycott of the free market. They also said, each team froze out free agents because it knew other teams would do the same and this implicit understanding reinforced the scheme.

 

Here the arguments are almost identical to the Kaepernick grievance. Clubs will claim they each decided separately not to hire him. Kaepernick will say that he has been blackballed from the NFL.  He will claim clubs coordinated the effort to “protect their bottom line.”

 

Will Kaepernick win using the MLB arguments?

 

He may but he may not. There are some key differences. In the MLB cases, tons of players were frozen out of the free market. Today, there are plenty of players who kneel who remain employed. Kaepernick will have to prove that the aim of the collusion was to make an example out of the man who started the “movement.”

 

Also, just because arbitrators in the 80s found implied collusion, doesn’t mean a modern day arbitrator will. Back then, the MLB policy prohibited owners from “acting in concert.”  The NFL’s collusion clause does the same but requires a showing of “clear and convincing” evidence. That's evidence that makes it almost impossible to deny collusion. The collusion can still be implied but the evidence must be persuasive and can’t be too remote.

 

Finally, a lot could change from now until the case is heard. Kaepernick’s case will depend on the discovery of additional information, just like the MLB cases did. We won’t know the content of the communications between owners until after discovery is complete. Sources say by the end of the process, all 32 owners will be deposed (questioned under oath) and thousands of pages of texts and emails evidencing their communications will be uncovered  One smoking gun may be enough to prove collusion between two teams.  But right now Kaepernick is claiming collusion by all 32 clubs.  If there is no smoking gun, he may have to continue to argue league-wide collusion, which will be much harder to prove.

 

If he’s signed to a team will his grievance go away?

 

From what I’ve heard, even if he’s signed, he may not necessarily drop his grievance, but it would make it much harder for him to win.  Which means, the NFL"s best legal defense right now is to get him back on the field.

 

 

 

 

 

 

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