WEBVTT - Kaepernick Files Grievance Against NFL Owners (Audio)

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<v Speaker 1>Thank you. Charlie. Bloomberg Law has brought you by Commonwealth

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<v Speaker 1>Financial Network, the broker dealer r I a that's been

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<v Speaker 1>the industry's most satisfied advisors are head over heels about them.

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<v Speaker 1>Visit Commonwealth dot com. Greg Thanks June. Colin Kaepernick, the

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<v Speaker 1>NFL quarterback who started the controversial practice of kneeling during

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<v Speaker 1>the national anthem, still doesn't have a job, but he

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<v Speaker 1>does have a lawyer and now a legal claim against

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<v Speaker 1>the league. According to reports, Kaepernick has retained Los Angeles

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<v Speaker 1>lawyer Mark Garragos and filed the grievance claiming the NFL's

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<v Speaker 1>thirty two teams have conspired to keep him unemployed. What

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<v Speaker 1>are his chances and mke Donald Trump's comments on the

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<v Speaker 1>subject play a role in his case? Well, ask Mark Edelman.

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<v Speaker 1>He's a professor at Bruke College Zicklin School of Business

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<v Speaker 1>and the founder of Edelman Law. Mark. Thanks for being

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<v Speaker 1>with us. Good to have you back on the show. Um,

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<v Speaker 1>what is Colin Kaepernick gonna have to to show to

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<v Speaker 1>win his grievance against the league? Well, the grievance that

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<v Speaker 1>Colin Kaepernick filed against the league alleges that two and

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<v Speaker 1>more teams colluded to keep him out of the NFL.

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<v Speaker 1>What he's going to need to show is some form

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<v Speaker 1>of evidence of an agreement that was reached between at

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<v Speaker 1>least two and more teams UH to act in concert

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<v Speaker 1>not to sign him. Mark. How difficult is that going

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<v Speaker 1>to be because he'll have to show either emails I

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<v Speaker 1>take it or texts or phone conversations. Are those available? Well? Um,

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<v Speaker 1>much like in a court proceeding UH, in an internal arbitration,

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<v Speaker 1>there will be a discovery process. The rule of discovery

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<v Speaker 1>and arbitration will liberalize over the federal rules of evidence. Um.

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<v Speaker 1>But Copper and explawyers still should be able to secure

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<v Speaker 1>all these types of information that you reference, ranging from

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<v Speaker 1>things that are in print to email to phone records

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<v Speaker 1>as well perhaps to be get taking depositions and testimony

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<v Speaker 1>of managerial level employees on the teams. So, Calin Kaepernick

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<v Speaker 1>is a pretty good quarterback. He's gone to the Super

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<v Speaker 1>Bowl at the fourteen niners. There he last year threw

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<v Speaker 1>sixteen touchdowns only four interceptions. Um. Is that enough to

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<v Speaker 1>make a circumstantial case that UH teams are conspiring against

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<v Speaker 1>him or does he need more than that? He probably

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<v Speaker 1>needs more than that. You know, a lot of the

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<v Speaker 1>doctrine of conspiracy UH theory of collusion theory comes out

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<v Speaker 1>of anti trust law. And it's true that as a

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<v Speaker 1>matter of federal anti trust law, UH, there is this

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<v Speaker 1>doctrine that says, UH that if a result could not

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<v Speaker 1>logically be achieved buck for collusion, it shifts the burden.

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<v Speaker 1>And it's true that there is a very famous case

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<v Speaker 1>involved in its bacco industry from many moons ago, where

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<v Speaker 1>all four of the major companies jump the price on

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<v Speaker 1>the same day, and because it seems so unlikely that

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<v Speaker 1>that would ever happen, but for collusion, it shifted the burden. However,

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<v Speaker 1>according to the NFL Collective Bargaining Agreement, UH, there is

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<v Speaker 1>language in there that says the mere fact that no

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<v Speaker 1>team signed a player UH in itself cannot be the

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<v Speaker 1>entirety of the evidence that's used, meaning that there will

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<v Speaker 1>need to be at least some form of testimony or

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<v Speaker 1>some form of documentation introduced to at least add a

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<v Speaker 1>kernel beyond that. Also, even if you leave it aside,

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<v Speaker 1>Colin Kaepernick, while he may be a borderline starting quarterback

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<v Speaker 1>is also a player who purportedly requested a certain sum

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<v Speaker 1>of money to play. And because the NFL operates under

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<v Speaker 1>a salary cap, it's not as simple as saying, we

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<v Speaker 1>have thirty two teams and each have three quarterbacks and

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<v Speaker 1>Colin kaepern because clearly one of the best nine quarterbacks.

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<v Speaker 1>One also has to think about the issue of, based

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<v Speaker 1>upon what his salary demands were, whether he would have

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<v Speaker 1>a reasonable flot mark. Why he's Why isn't he filing

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<v Speaker 1>a grievance through the NFL Players Association? Why is he

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<v Speaker 1>hiring his own lawyer? And then we heard the NFL

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<v Speaker 1>Players Association say, uh, they'll assist well. First, under the

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<v Speaker 1>collective bargaining agreements, a player has a choice as to

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<v Speaker 1>whether they want to bring a grievance of this type

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<v Speaker 1>using personal lawyers or using union lawyers. So the simplest

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<v Speaker 1>the possible answers is, this is his choice and this

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<v Speaker 1>is what he wants to do. Now, as to why

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<v Speaker 1>Colin Kaepernick may think this is a better choice, I'm

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<v Speaker 1>not certain, but I have a few hunches. One is well,

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<v Speaker 1>the union is supposed to represent every individual zealouslie the

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<v Speaker 1>you You also has to balance the interests of the

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<v Speaker 1>player's overall, meaning that the union might have greater reluctance

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<v Speaker 1>to bring a collision colin if there isn't evidence that's

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<v Speaker 1>already available. They may think it's not the best use

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<v Speaker 1>of the collective player funds. Kaepernick, however, may feel that

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<v Speaker 1>even if at this point he doesn't have evidence, it's

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<v Speaker 1>worth the time and the cost of the involved to

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<v Speaker 1>him of moving forward and attempting to get that information discovered.

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<v Speaker 1>The other issue that comes into play is I think

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<v Speaker 1>that the union may very well, on the back of

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<v Speaker 1>their head, be considering the possibility of filing a suit

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<v Speaker 1>against President Trump himself, And one might reasonably construe the

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<v Speaker 1>most recent tweets by President Trump in which he threatened

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<v Speaker 1>or attempted to induce the NFL to get rid of

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<v Speaker 1>players that kneeled by indicating there would be a loss

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<v Speaker 1>of financial benefits for the league. Uh that type of

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<v Speaker 1>conduct arguably might create a constitutional First Amendment issue where

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<v Speaker 1>the government is attempting to chill free speech or political

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<v Speaker 1>speech of athletes by encouraging their employer to get rid

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<v Speaker 1>of them through financial homes. Now, if that is true,

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<v Speaker 1>the union might be reluctant to bring this collusion grievance

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<v Speaker 1>on behalf of Kaepernick because the grievance seems to be

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<v Speaker 1>alleging that the NFL teams have been conspiring against Kaepernick

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<v Speaker 1>even before the president publicly got involved. So there's two

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<v Speaker 1>very different types of theoretical claims. Might be butting heads

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<v Speaker 1>a little bit as as opposed to playing well together. Well,

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<v Speaker 1>let me ask you about an earlier Trump comments, not

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<v Speaker 1>not a tweet, but it came back in March when

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<v Speaker 1>he flew on Air Force one with Robert Craft, who's

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<v Speaker 1>the owner of the Patriots UH and the next day

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<v Speaker 1>Trump said it was reported that NFL owners don't want

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<v Speaker 1>to pick Kaepernick up because they don't want to get

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<v Speaker 1>a nasty tweet from Donald Trump. Is that a piece

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<v Speaker 1>of evidence that might matter in Kaepernick's case? Can he

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<v Speaker 1>use that in some way to say, um that as

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<v Speaker 1>a result of those comments, UH, NFL owners had an

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<v Speaker 1>incentive to uh to to avoid signing me. Well, Kaepernick

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<v Speaker 1>lawyers could attempt to use evidence in any way which

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<v Speaker 1>they think the evidence is helpful for them. Frankly, I

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<v Speaker 1>don't think that particular tweet is necessarily helpful. If you

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<v Speaker 1>think about collusion. Again, collusion is an agreement amongst two

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<v Speaker 1>more parties. UH. That's fundamentally different from conscious parallels. Conscious parallelism,

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<v Speaker 1>which is entirely permitted, involves multiple entities that make the

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<v Speaker 1>same decision for the same reasons, but not in concert. So,

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<v Speaker 1>for example, if Bob Kraft decides that the Patriots not

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<v Speaker 1>going to sign Colin Kaepernick because he's afraid that there'll

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<v Speaker 1>be a tweet storm coming from the president of sy

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<v Speaker 1>bloss and if UH, let's say the Mara family from

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<v Speaker 1>the Giants independently and without there being conjunction with anything else. Besides,

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<v Speaker 1>they also are not going to sign Kaepernick because they

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<v Speaker 1>don't want to deal with the presidents impossible tweet storms.

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<v Speaker 1>But there is no meeting of the mind between the

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<v Speaker 1>two UH. That does not indicate collusion. So un once,

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<v Speaker 1>the argument is that there's this big hug of spoke

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<v Speaker 1>conspiracy going on President Trump and sitting at the center

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<v Speaker 1>of the hub and losing agreements between the member clubs,

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<v Speaker 1>I'm not sure that this particular tweeting itself from awesome

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<v Speaker 1>he doesn't want to be on the President's bad lust,

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<v Speaker 1>UH is doing to make much of a difference Mark.

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<v Speaker 1>Barry Bonds also filed a collusion case against the Baseball

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<v Speaker 1>League when he didn't get a single offer back in

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<v Speaker 1>two thousand seven, and it was believed that the use

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<v Speaker 1>of steroids made him too toxic for a team to sign.

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<v Speaker 1>And I wonder if there's an analogy here where the

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<v Speaker 1>teams feel that Kaepernick is too toxic to sign. If

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<v Speaker 1>anything I felt by Bonds is collusion, Coloin with a

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<v Speaker 1>much stronger coin. Again, we do not know what evidence

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<v Speaker 1>Colin Kaepernick and his lawyers may already have or may

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<v Speaker 1>be able to uncover, but at least on the surface,

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<v Speaker 1>the Bolly Bonds claiming Barry did not win seems like

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<v Speaker 1>an incredibly strong coin. This week, the home run champion

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<v Speaker 1>in Major League Baseball, coming off the year in which

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<v Speaker 1>he broke the all time home run record and was

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<v Speaker 1>making upwards of seventeen million dollars a year, who agreed

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<v Speaker 1>to take a pay cut to the league minimum salary

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<v Speaker 1>of four hundred thousands, and he still was not able

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<v Speaker 1>to sign the team after the commissioning some high ranking

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<v Speaker 1>officials in the league had made negative statements about them.

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<v Speaker 1>I remained very surprised today that Barry Bonds was not

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<v Speaker 1>able to introduce enough evidence to an independent arbitrator to

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<v Speaker 1>win his plunge. Kaepernick's a sort of evidence that hasn't

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<v Speaker 1>been bencovered yet seems to be even tougher to make

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<v Speaker 1>at this point, at least until very recently, Drewell has

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<v Speaker 1>been steadfast and avoiding saying anything negative about Kaepernick. Kaepernick

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<v Speaker 1>was a good player, but not a superstar player like

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<v Speaker 1>Barry Bonds. Kaepernick was asking for a sum of money

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<v Speaker 1>that was a sibilistic in sum of money in a

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<v Speaker 1>league with the teams that at salary capt and throw

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<v Speaker 1>on top. As unbelievable as it seems in tween that

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<v Speaker 1>we have a president that bullies and talks people on

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<v Speaker 1>Twitter on a regular basis, one does have to recognize

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<v Speaker 1>that the president bully post Hope, has been persuasive and

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<v Speaker 1>while then may reasonably be legal claims against the president himself,

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<v Speaker 1>it may be rational for individual teams to stay were

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<v Speaker 1>staying away from this player because there are a lot

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<v Speaker 1>of people that follow the president. I want to thank

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<v Speaker 1>our guest, Mark Edelman, a law professor at Bruke College,

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<v Speaker 1>Zick's brut College, Zicklin School of Business and founder of

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<v Speaker 1>Edelman Law talking to us about Colin Kaepernick. That's it

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<v Speaker 1>for this edition of Bloomberg Law. Coming up in a

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<v Speaker 1>moment Donald Trump's press conference. But first let's go to

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<v Speaker 1>Bloomberg's Charlie Pellett for a check on the market's Charlie