The Great Smoky Mountain Journal
Staff, Wire Reports
Posted: Sunday, January 21, 2018 06:34 PM
OPED: Gregg Jarrett: Kaepernick's Case Against The NFL As Lame As He Is As A Player
Colin Kaepernick’s newly-filed
grievance accusing the NFL of colluding or conspiring against him is a
legal “Hail Mary.”
He and his lawyers stand little chance of winning because both the law
and the facts are against him.
The Facts
Kaepernick used to be an outstanding quarterback. Selected by San
Francisco in the 2011 draft, he led the 49ers to the Super Bowl in the
2012 season and the NFC Championship game the following year. And then,
he seemed to implode.
Over the next two years, his throwing arm regressed and his overall
skills as a rushing quarterback diminished. Injuries only made matters
worse. The team finally gave up on him, and he was benched during the
2015 season. He never recovered. It did not help that Kaepernick was
twice fined by the NFL for inappropriate language and behavior. He
tended to be selfish and tempestuous.
Kaepernick seems oblivious to the fact that he does not have the right
to play in the NFL. No one does. It must be earned. And not just on the
playing field, but elsewhere.
Kaepernick was already collecting bench splinters when he began his
one-man protest of the national anthem and the American flag in the 2016
pre-season. So, let’s be clear: he was never punished by the 49ers or
the NFL for sitting or kneeling. He was not starting games or playing
much as a back-up quarterback because, quite simply, he was no longer
good enough.
Only then did he decide, all on his own, to quit the 49ers in March of
2017. He chose to opt out of his contract with the club, making himself
a free agent. Since then, no other NFL team has showed much interest in
signing him.
The Law
Contract law governs Kaepernick’s “grievance” filed by his lawyer, Mark
Geragos, against the NFL. He alleges that teams conspired to prevent
Kaepernick from being signed with a club as “punishment” for
precipitating other anthem protests. Geragos claims his client was
“denied employment based on partisan political provocation.”
The case against the NFL and its teams is based on Article 17 of the
Collective Bargaining Agreement negotiated by the players and the
league. It states, in relevant part:
“No Club shall enter into any agreement, express or implied, with the
NFL or any other Club… to restrict or limit individual Club
decision-making on whether to offer or not offer a Player Contract to
any player.”
In order to prevail, Kaepernick and his legal team would have the burden
of proving, “by a clear preponderance of the evidence,” that two or more
teams conspired to keep him out of the NFL. Does he have such proof? It
is highly doubtful.
Will any club executive or owner come forward to say he verbally agreed
with another team to exclude Kaepernick? Is there some incriminating
document or email reflecting the same? Unlikely. It is more likely that
teams made individual assessments about Kaepernick and concluded that he
was not worth signing for a variety of reasons.
Since the case goes to arbitration under the Collective Bargaining
Agreement, Kaepernick’s lawyers cannot subpoena documents nor can they
compel witnesses to testify. So, good luck locating the evidence,
assuming it even exists.
But most importantly, Section 6 of the CBA’s Article 17 states that
“failure to sign a player…shall not, by itself or in combination only
with evidence about the playing skills of the player, satisfy the burden
of proof.”
In other words, Kaepernick cannot prove collusion by simply arguing that
he is qualified, yet remains unsigned by any football team. It is not
enough to win his case against the NFL.
The fact that he elected to leave the San Francisco 49ers voluntarily,
while still under contract, undermines his already weak case. Opting out
of his contract because, arguably, he thought the team would eventually
cut him from the club, counts only as speculation. What he believes or
suspects might have happened is of little consequence in such legal
proceedings.
Kaepernick seems oblivious to the fact that he does not have the right
to play in the NFL. No one does. It must be earned. And not just on the
playing field, but elsewhere.
If any teams feels that a potential player might prove disruptive in the
locker room or destructive on the playing field, or even if a club
believes that fans will react negatively to a particular player, the
team is well within its rights to decide not to hire that player.
Perhaps this is why a few quarterbacks who may have inferior skills to
Kaepernick’s have found positions as second and third-string back-ups.
Teams invariably make their player decisions based on need, skills,
leadership, and the ability to coalesce with other players.
Temperamental quarterbacks who are lacking those qualities sometimes
find themselves watching NFL football games at home.
Just like Colin Kaepernick.
Gregg Jarrett is a Fox News legal analyst and former defense attorney.