Speaker 1: Thank you. Charlie. Bloomberg Law has brought you by Commonwealth
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Speaker 1: Visit Commonwealth dot com. Greg Thanks June. Colin Kaepernick, the
Speaker 1: NFL quarterback who started the controversial practice of kneeling during
Speaker 1: the national anthem, still doesn't have a job, but he
Speaker 1: does have a lawyer and now a legal claim against
Speaker 1: the league. According to reports, Kaepernick has retained Los Angeles
Speaker 1: lawyer Mark Garragos and filed the grievance claiming the NFL's
Speaker 1: thirty two teams have conspired to keep him unemployed. What
Speaker 1: are his chances and mke Donald Trump's comments on the
Speaker 1: subject play a role in his case? Well, ask Mark Edelman.
Speaker 1: He's a professor at Bruke College Zicklin School of Business
Speaker 1: and the founder of Edelman Law. Mark. Thanks for being
Speaker 1: with us. Good to have you back on the show. Um,
Speaker 1: what is Colin Kaepernick gonna have to to show to
Speaker 1: win his grievance against the league? Well, the grievance that
Speaker 1: Colin Kaepernick filed against the league alleges that two and
Speaker 1: more teams colluded to keep him out of the NFL.
Speaker 1: What he's going to need to show is some form
Speaker 1: of evidence of an agreement that was reached between at
Speaker 1: least two and more teams UH to act in concert
Speaker 1: not to sign him. Mark. How difficult is that going
Speaker 1: to be because he'll have to show either emails I
Speaker 1: take it or texts or phone conversations. Are those available? Well? Um,
Speaker 1: much like in a court proceeding UH, in an internal arbitration,
Speaker 1: there will be a discovery process. The rule of discovery
Speaker 1: and arbitration will liberalize over the federal rules of evidence. Um.
Speaker 1: But Copper and explawyers still should be able to secure
Speaker 1: all these types of information that you reference, ranging from
Speaker 1: things that are in print to email to phone records
Speaker 1: as well perhaps to be get taking depositions and testimony
Speaker 1: of managerial level employees on the teams. So, Calin Kaepernick
Speaker 1: is a pretty good quarterback. He's gone to the Super
Speaker 1: Bowl at the fourteen niners. There he last year threw
Speaker 1: sixteen touchdowns only four interceptions. Um. Is that enough to
Speaker 1: make a circumstantial case that UH teams are conspiring against
Speaker 1: him or does he need more than that? He probably
Speaker 1: needs more than that. You know, a lot of the
Speaker 1: doctrine of conspiracy UH theory of collusion theory comes out
Speaker 1: of anti trust law. And it's true that as a
Speaker 1: matter of federal anti trust law, UH, there is this
Speaker 1: doctrine that says, UH that if a result could not
Speaker 1: logically be achieved buck for collusion, it shifts the burden.
Speaker 1: And it's true that there is a very famous case
Speaker 1: involved in its bacco industry from many moons ago, where
Speaker 1: all four of the major companies jump the price on
Speaker 1: the same day, and because it seems so unlikely that
Speaker 1: that would ever happen, but for collusion, it shifted the burden. However,
Speaker 1: according to the NFL Collective Bargaining Agreement, UH, there is
Speaker 1: language in there that says the mere fact that no
Speaker 1: team signed a player UH in itself cannot be the
Speaker 1: entirety of the evidence that's used, meaning that there will
Speaker 1: need to be at least some form of testimony or
Speaker 1: some form of documentation introduced to at least add a
Speaker 1: kernel beyond that. Also, even if you leave it aside,
Speaker 1: Colin Kaepernick, while he may be a borderline starting quarterback
Speaker 1: is also a player who purportedly requested a certain sum
Speaker 1: of money to play. And because the NFL operates under
Speaker 1: a salary cap, it's not as simple as saying, we
Speaker 1: have thirty two teams and each have three quarterbacks and
Speaker 1: Colin kaepern because clearly one of the best nine quarterbacks.
Speaker 1: One also has to think about the issue of, based
Speaker 1: upon what his salary demands were, whether he would have
Speaker 1: a reasonable flot mark. Why he's Why isn't he filing
Speaker 1: a grievance through the NFL Players Association? Why is he
Speaker 1: hiring his own lawyer? And then we heard the NFL
Speaker 1: Players Association say, uh, they'll assist well. First, under the
Speaker 1: collective bargaining agreements, a player has a choice as to
Speaker 1: whether they want to bring a grievance of this type
Speaker 1: using personal lawyers or using union lawyers. So the simplest
Speaker 1: the possible answers is, this is his choice and this
Speaker 1: is what he wants to do. Now, as to why
Speaker 1: Colin Kaepernick may think this is a better choice, I'm
Speaker 1: not certain, but I have a few hunches. One is well,
Speaker 1: the union is supposed to represent every individual zealouslie the
Speaker 1: you You also has to balance the interests of the
Speaker 1: player's overall, meaning that the union might have greater reluctance
Speaker 1: to bring a collision colin if there isn't evidence that's
Speaker 1: already available. They may think it's not the best use
Speaker 1: of the collective player funds. Kaepernick, however, may feel that
Speaker 1: even if at this point he doesn't have evidence, it's
Speaker 1: worth the time and the cost of the involved to
Speaker 1: him of moving forward and attempting to get that information discovered.
Speaker 1: The other issue that comes into play is I think
Speaker 1: that the union may very well, on the back of
Speaker 1: their head, be considering the possibility of filing a suit
Speaker 1: against President Trump himself, And one might reasonably construe the
Speaker 1: most recent tweets by President Trump in which he threatened
Speaker 1: or attempted to induce the NFL to get rid of
Speaker 1: players that kneeled by indicating there would be a loss
Speaker 1: of financial benefits for the league. Uh that type of
Speaker 1: conduct arguably might create a constitutional First Amendment issue where
Speaker 1: the government is attempting to chill free speech or political
Speaker 1: speech of athletes by encouraging their employer to get rid
Speaker 1: of them through financial homes. Now, if that is true,
Speaker 1: the union might be reluctant to bring this collusion grievance
Speaker 1: on behalf of Kaepernick because the grievance seems to be
Speaker 1: alleging that the NFL teams have been conspiring against Kaepernick
Speaker 1: even before the president publicly got involved. So there's two
Speaker 1: very different types of theoretical claims. Might be butting heads
Speaker 1: a little bit as as opposed to playing well together. Well,
Speaker 1: let me ask you about an earlier Trump comments, not
Speaker 1: not a tweet, but it came back in March when
Speaker 1: he flew on Air Force one with Robert Craft, who's
Speaker 1: the owner of the Patriots UH and the next day
Speaker 1: Trump said it was reported that NFL owners don't want
Speaker 1: to pick Kaepernick up because they don't want to get
Speaker 1: a nasty tweet from Donald Trump. Is that a piece
Speaker 1: of evidence that might matter in Kaepernick's case? Can he
Speaker 1: use that in some way to say, um that as
Speaker 1: a result of those comments, UH, NFL owners had an
Speaker 1: incentive to uh to to avoid signing me. Well, Kaepernick
Speaker 1: lawyers could attempt to use evidence in any way which
Speaker 1: they think the evidence is helpful for them. Frankly, I
Speaker 1: don't think that particular tweet is necessarily helpful. If you
Speaker 1: think about collusion. Again, collusion is an agreement amongst two
Speaker 1: more parties. UH. That's fundamentally different from conscious parallels. Conscious parallelism,
Speaker 1: which is entirely permitted, involves multiple entities that make the
Speaker 1: same decision for the same reasons, but not in concert. So,
Speaker 1: for example, if Bob Kraft decides that the Patriots not
Speaker 1: going to sign Colin Kaepernick because he's afraid that there'll
Speaker 1: be a tweet storm coming from the president of sy
Speaker 1: bloss and if UH, let's say the Mara family from
Speaker 1: the Giants independently and without there being conjunction with anything else. Besides,
Speaker 1: they also are not going to sign Kaepernick because they
Speaker 1: don't want to deal with the presidents impossible tweet storms.
Speaker 1: But there is no meeting of the mind between the
Speaker 1: two UH. That does not indicate collusion. So un once,
Speaker 1: the argument is that there's this big hug of spoke
Speaker 1: conspiracy going on President Trump and sitting at the center
Speaker 1: of the hub and losing agreements between the member clubs,
Speaker 1: I'm not sure that this particular tweeting itself from awesome
Speaker 1: he doesn't want to be on the President's bad lust,
Speaker 1: UH is doing to make much of a difference Mark.
Speaker 1: Barry Bonds also filed a collusion case against the Baseball
Speaker 1: League when he didn't get a single offer back in
Speaker 1: two thousand seven, and it was believed that the use
Speaker 1: of steroids made him too toxic for a team to sign.
Speaker 1: And I wonder if there's an analogy here where the
Speaker 1: teams feel that Kaepernick is too toxic to sign. If
Speaker 1: anything I felt by Bonds is collusion, Coloin with a
Speaker 1: much stronger coin. Again, we do not know what evidence
Speaker 1: Colin Kaepernick and his lawyers may already have or may
Speaker 1: be able to uncover, but at least on the surface,
Speaker 1: the Bolly Bonds claiming Barry did not win seems like
Speaker 1: an incredibly strong coin. This week, the home run champion
Speaker 1: in Major League Baseball, coming off the year in which
Speaker 1: he broke the all time home run record and was
Speaker 1: making upwards of seventeen million dollars a year, who agreed
Speaker 1: to take a pay cut to the league minimum salary
Speaker 1: of four hundred thousands, and he still was not able
Speaker 1: to sign the team after the commissioning some high ranking
Speaker 1: officials in the league had made negative statements about them.
Speaker 1: I remained very surprised today that Barry Bonds was not
Speaker 1: able to introduce enough evidence to an independent arbitrator to
Speaker 1: win his plunge. Kaepernick's a sort of evidence that hasn't
Speaker 1: been bencovered yet seems to be even tougher to make
Speaker 1: at this point, at least until very recently, Drewell has
Speaker 1: been steadfast and avoiding saying anything negative about Kaepernick. Kaepernick
Speaker 1: was a good player, but not a superstar player like
Speaker 1: Barry Bonds. Kaepernick was asking for a sum of money
Speaker 1: that was a sibilistic in sum of money in a
Speaker 1: league with the teams that at salary capt and throw
Speaker 1: on top. As unbelievable as it seems in tween that
Speaker 1: we have a president that bullies and talks people on
Speaker 1: Twitter on a regular basis, one does have to recognize
Speaker 1: that the president bully post Hope, has been persuasive and
Speaker 1: while then may reasonably be legal claims against the president himself,
Speaker 1: it may be rational for individual teams to stay were
Speaker 1: staying away from this player because there are a lot
Speaker 1: of people that follow the president. I want to thank
Speaker 1: our guest, Mark Edelman, a law professor at Bruke College,
Speaker 1: Zick's brut College, Zicklin School of Business and founder of
Speaker 1: Edelman Law talking to us about Colin Kaepernick. That's it
Speaker 1: for this edition of Bloomberg Law. Coming up in a
Speaker 1: moment Donald Trump's press conference. But first let's go to
Speaker 1: Bloomberg's Charlie Pellett for a check on the market's Charlie