Sources say Green Bay Packers coach Mike McCarthy & Houston Texans coach Bill O’Brien are guaranteed to be deposed or put on the witness stand as part of Colin Kaepernick’s grievance after their recent comments and QB choices, if Kaepernick's team has its way.
If Kaepernick’s grievance proceeds, the coaches will likely be grilled on their justifications for not hiring Kaepernick as well as their subsequent hiring decisions. Bill O’Brien who publicly said Kaepernick is a “good football player” but went on to express concern over him because he “hasn’t played football in a while,” went on to hire Josh Johnson today, who hasn’t attempted a pass since 2011. According to USA Today, Kaepernick has attempted 1,687 passes since Johnson’s last attempt.
Kaepernick’s attorneys plan to question O’Brien on the seemingly contradictory statements and hiring practices to illustrate that something is amiss in the free market. They will try to prove that “something” is collusion. As I mentioned in a previous article, Kaepernick can win his case if his attorneys either find a smoking gun email or text OR if they can prove implied collusion.
Implied collusion exists if there is proof of a gentleman’s agreement (a wink and a nod understanding among two or more owners and coaches not to hire Kaepernick). Kaepernick’s team will confront owners and coaches with their public justifications for not hiring Kaepernick and butt them up against proof of their hiring practices to show contradictions.
McCarthy from the GB Packers, chose to use backup QB Brett Hundley in Star QB Aaron Rodgers place after a collarbone injury. McCarthy who was seemingly angered by a reporter's question about the possibility of hiring Kaepernick has been outspoken about his support for standing for the National Anthem and even gives players a lesson on the meaning and importance of the tradition. His recent outburst when asked about Kaepernick, could be used as evidence in the grievance case.
Statistical Analysis of Player Stats
According to sources, Kaepernick’s team is in the process of consulting with statisticians and experts who specialize in discriminatory hiring practices to do statistical analysis. The experts will run a league-wide analysis of statements made by coaches. The experts will also conduct a statistical analysis of the players who have been hired or even been given an opportunity to practice in place of Kaepernick. Once they compare statistics, these experts could testify that certain coaches had no good faith reasons not to hire Kaepernick and all of their explanations were just pretextual (excuses that mask their real intentions). Furthermore, expect testimony that behind this pattern of pretextual justification is a pattern of discriminatory hiring practices. It’s anticipated by sources, that once the statistical analysis is complete, experts will be able to conclude that it’s statistically impossible that Kaepernick wouldn’t have been hired by now, given the stat comparisons and recent injuries, if the free market were operating normally.
Contradictory Statements & Hiring Practices
Kaepernick’s team will also use the public statements from coaches and owners and juxtapose them with statements made under oath during depositions to expose a lack of credibility and a disconnect between what’s being said and what’s being done. If it’s proven that owners and coaches are being less than truthful about their true motivations, then that would support the allegation that there is an underlying gentleman’s agreement that is allegedly being concealed.
Keep in mind that no coaches or owners have said publicly that they are not hiring Kaepernick because he is “controversial,” or because he doesn’t stand for the Anthem and would be bad for business. This public omission is a critical piece of Kaepernick’s case that there is a secret agreement among owners.
Coaches, owners and NFL Commissioner Roger Goodell may all oppose efforts by Kaepernick's team to depose them or compel them to testify as part of the grievance. The ultimate decision will be up to the arbitrator and it's likely that if the arbitrator feels they are relevant to the hiring discussions and/or decisions and the case, they will be deposed as league employees.
The Kaepernick Effect
To give you an idea of what experts will be analyzing, check out these facts. According to Martenzie Johnson of theUndefeated.com, the Green Bay Packers, Arizona Cardinals & Miami Dolphins have all “used a below-average backup or signed a retiree off the street,” instead of Kaepernick and “by Week 10, the Colts (Jacoby Brissett) and Niners (Jimmy Garoppolo) would have started quarterbacks who spent less than two weeks on their roster before being handed the keys to the offense.”
In addition, sources say Kaepernick’s team is examining a roster published by the NFL, which lists the top NFL Player Rankings. Colin Kaepernick is listed as #29 in 2016. However, NFL teams have signed or used numerous new and backup QBs that rank lower than him on the NFL’s own ranking system, including, Brandon Weeden, Ryan Nassib, EJ Manuel, Kellen Clemens, Brett Hundley, among others. Even Brian Hoyer, Kaepernick’s replacement in San Francisco, played in his stead before being cut. This will surely become a piece of evidence as the discovery process continues to unfold.