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The Peculiar Institution

October 25, 2017

Did Kaepernick's attorneys compare the NFL free market to slavery? 
Noone has zeroed in on a recurring phrase tucked inside Colin Kaepernick's grievance with the NFL.. The phrase is "the peculiar institution."  As I discuss tonight on CBS Sports Network's show "We Need to Talk," the language has deep historical and legal significance. As noted by historian  Kenneth Stampp, "Peculiar Institution," was a phrase commonly used by white southerners to describe the institution of slavery. The term "slavery" used to be unbecoming so it was called a ""peculiar institution." The phrase was later used by Martin Luther King, Jr. in his book "Where do we go from here? Chaos or Community."   While racism is inherent in slavery, many people forget that slavery was also an economically-driven labor institution. Once purchased, slaves were free laborers with no constitutional rights. Once slavery was abolished and civil rights law progressed, that's when labor unions began to form, to fight to enforce the constitutional rights of laborers and oversee workplace conditions.  

Why did Kaepernicks' lawyers use this term in the grievance?
Kaepernick's attorneys say the NFL's "free market" began to function like a peculiar institution. There's no other obvious explanation but to say they are discreetly analogizing the NFL's self-proclaimed meritocracy to the institution of slavery. But, you may think, most players make millions of dollars to play the sport they love so that's just a ridiculous comparison. However, the NFL is a labor institution and Kaepernick's claim is that he was essentially blackballed for exercising his first amendment right to peacefully protest by kneeling. Therefore, his team may be inferring that he is facing a form of oppression within his work environment because he cannot exercise his fundamental right to free speech. 

Why are Kaepernick's attorneys comparing the NFL's free market to slavery?
Kaepernick's attorneys are framing his grievance like a civil rights claim because it provides them with options if he loses. There has been a lot of talk over whether Kaepernick will try to terminate the Collective Bargaining Agreement. Under the CBA you need to show that 14 teams colluded together to keep him out of the League in order to terminate the CBA (which is near impossible) AND the claim has to be brought by the NFLPA.

Kaepernick is bringing this claim individually through private attorneys. He is actually the first NFL player in history to bring his own grievance claim (usually the union brings it). So it seems terminating the CBA is not likely at first glance. However, there's another way he can try to invalidate the CBA and it involves his use of the term "peculiar institution." If Kaepernick loses his grievance, he can appeal. If he loses the appeal he can file a lawsuit in federal court to vacate the arbitration decision, just like Tom Brady and Ezekiel Elliott.  He can challenge the entire CBA. Courts will only invalidate a CBA if it violates public policy. The Supreme Court has said the public policy must be rooted firmly in the law and not merely speculative.  There are no laws more firmly rooted than those fundamental rights protected by the constitution. So, Kaepernick's attorneys may say that the CBA should be terminated because it violates public policy by promoting unfair labor practices that interfere with players' exercise of their most basic fundamental rights, such as the right to peacefully protest. They will say this CBA protects a "peculiar institution," that infringes on the right to free speech without retaliation. 

As I mentioned in a previous blog post, Kaepernick's attorneys could potentially try to sue the President for allegedly playing a role in depriving Kaepernick of his right to employment based on the exercise of his constitutional rights.  Kaepernick's attorneys are already directly blaming the President for the behavior of the NFL owners. They say in the grievance that NFL owners retaliated against Kaepernick in response to "coercion" and "coordination" from the executive branch. 

How will the NFL respond?
Now of course, NFL owners and the President would deny all of the above, if they were ever sued in federal court. The NFL will assert that it is a private employer who has not infringed on any of Kaepernick's rights and owners simply chose not to hire him based on his skill level. Even if owners factored his protests into their decision, they have a right to do so because they are private employers. The only way the owners violate the rules, is if they work together to keep Kaepernick out. Individual decisions not to hire, are perfectly legal.  The President will also say there is no direct relationship between him and Kaepernick and that each club decided on its own not to hire him. With regard to Kaepernick's exercise of his constitutional rights, the NFL may also say that plenty of players have been permitted to kneel and have not been disciplined or fired. In addition, the league will note that it has not enforced the guidance in the players manual, that players should be on the field during the National Anthem and stand. 

In response, Kaepernick's attorneys will say that there was no firm policy requiring players to stand for the National Anthem and that absent Kaepernick violating a league policy he should not be blackballed or retaliated against for exercising his most basic rights. Their position is that he has not done anything unlawful or wrong and therefore he should not be deprived of his right to work or considered "controversial" for taking a stand against what he perceives as racial inequality. 

No matter how this turns out, it's quite fascinating to see how calculating, strategic and historically rooted, Kaepernick's argument is, whether you think it's valid or not. 

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