'What would you say if I told you that Colin Kaepernick’s grievance is about much more than a disgruntled employee trying to get money from his boss? His case is set up to be about issues way larger than the NFL. In fact, it's already invoking questions about civil rights that extend all the way to the executive branch of the government.
The grievance is just the first step, according to sources, he and his team are prepared to take the case all the way, if necessary.
If Colin Kaepernick fails at proving collusion in a CBA arbitration, his legal team could challenge the collective bargaining agreement in a federal court, on grounds that it violates public policy through unfair labor practices that violate fundamental rights. They could then attempt to petition the case all the way to the United States Supreme Court, if it ever got that far. If accepted, it has the potential to turn into a monumental civil rights case that not only changes the country’s laws but possibly attempts to sue the President of the United States in his individual capacity.
How do we go from kneeling at a football game during the national anthem to suing the President?
Here we go. I’ll break it down and perhaps you’ll find it fascinating, just like I did when I stumbled upon the underlying theory by picking up clues in his very carefully worded grievance. When I read it, I realized it sounded more like a Section 1983 civil rights claim than a mere collusion claim. The grievance alleges that Kaepernick faced "retaliation" from the NFL and its owners for merely exercising his First Amendment right to peacefully protest. "So why is it worded that way and where is it going?" I wondered.
According to sources, the immediate plan is to win at the arbitration level by proving that NFL owners colluded (or worked together) to keep Kaepernick out of the League.
But this grievance already goes beyond collusion by the NFL and its clubs. The grievance alleges that the NFL and its club owners retaliated against Mr. Kaepernick “in response to coercion and calculated coordination from the Executive Branch of the United States government.” In layman’s terms, Kaepernick is accusing the President of organizing the retaliation against him, after he peacefully protested, by pressuring the league and its owners to deprive him of his right to employment with the NFL. Kaepernick’s lawyers reference meetings and communications between Trump and influential club owners like Jerry Jones and Robert Kraft. The insinuation is that Jones and Kraft then met with fellow club owners and influenced them to also shut Kaepernick out – all at the “calculated” direction of the President.
Why is this significant? Because, the First Amendment to the constitution expressly forbids government officials from interfering with freedom of expression. Retaliation, such as loss of employment, solely because you exercise your First Amendment rights is a blackletter (unequivocal) constitutional violation.
Generally, public employees can sue their public employers if they are fired (or not hired) just because they exercise their constitutional rights in the workplace. But, a private employee cannot sue a private employer for the same reason. Private employers ARE allowed to set policies that restrict free speech in the workplace (in the name of capitalism). If employees violate those policies they can be fired, even if they were just exercising their constitutional rights. For example, when Jemele Hill violated ESPN's social media policy, she was suspended.
But, Kaepernick’s team says, “…there has been no NFL rule prohibiting players from kneeling during the national anthem.” His team is alleging that he was not retaliated against by the NFL or its owners for violating a company policy. Instead, they posit that something far more sinister is going on and it’s trickling down from the highest levels of government.
Kaepernick’s team is using his grievance to subtly lay out a novel legal argument: alleging that government officials (the President and Vice President) directed a private employer to interfere with an individual’s constitutional rights. The inference here is that the NFL and its owners were like puppets of the Trump administration, merely exacting its agenda, which according to Kaepernick’s attorneys is to stifle his free speech & peaceful protest or, in the alternative, to promote its own definition of patriotism and pressure uniformity by blackballing any dissenters.
Remove the middleman (NFL and club owners) and you’re left with an allegation by Kaepernick that the President interfered with his First Amendment rights in violation of the Constitution.
I have never seen a case where a President is accused of manipulating private business to indirectly or secretly violate fundamental rights. Kaepernick’s claim is more than a collusion suit against the NFL and its club owners. Kaepernick’s claim is poised to transform into a landmark case against the President if he doesn't win his collusion grievance and his team is forced to go all the way. If it makes it to the Supreme Court, and depending on how it is pleaded, the Court may have to decide whether government communications with private employers can even rise to the level of such influence as well as many other fascinating legal questions that will affect future cases across all industries.
On the flip side, if Kaepernick ever tries to drag the President into a lawsuit, the President will first assert a defense of absolute immunity. The Supreme Court has ruled that a sitting President cannot be sued civilly for damages (or money) resulting from his official acts.
But remember when Paula Jones sued President Clinton for civil damages related to alleged sexual harassment and assault? Clinton asserted his absolute immunity defense, saying he can’t be sued in office. But, the Supreme Court ruled that a President can be sued for acts unrelated to his official duties.
Kaepernick’s team will have to argue that the President’s tweets and communications with club owners were irrelevant to his duties as President and were done in an individual capacity.
Even if sued, the President could merely say that his words were just his own exercise of free speech and not a calculated or coordinated effort to influence the NFL or its owners. He may argue that he is free to meet and talk with whomever he wants and that whether the NFL or its owners agree with him or not is their decision. He can further argue that any failure to employ Kaepernick was a decision by individual owners in the context of a private employer/employee relationship and his outside comments don’t create any third-party relationship that could hold him responsible for club owners’ decisions.
He could also argue, that Kaepernick was never hired because of reasons other than social advocacy and that even if club owners refused to hire him based on his protests, they are entitled to make such selective judgment calls as private employers.
But, the larger question could become: what happens when a President uses the enormous power of his office to promote his personal opinions? Is such conduct grounds for a lawsuit if those words become so influential so as to result (intentionally or not) in depriving someone of their constitutional rights to work and express their thoughts, beliefs or religions?
While Kaepernick’s team is focused on winning its collusion grievance, make no mistake that a deep level of thought and planning went into what kind of legal argument to make from the outset. There is always a larger goal, strategy or end-game as sports fans like to call it.
If Kaepernick’s goal was or is to become a civil rights icon, his legal team is boldly pushing that agenda forward and the zeitgeist may be right for it. Whether he wins or loses, his case could affect our civil rights laws one way or another. Watching this case play out has suddenly become fascinating.
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