Brian KONKEL's Article Entitled, "Kaepernick continues to make headlines amid collusion claims," was published in the Chicago Daily Law Bulletin.

As the NFL season resumes on the field, Colin Kaepernick continues to make headlines off of it. In early September, Nike announced that Kaepernick, who has a pending grievance against the NFL for collusion, would be the face of its 30th anniversary Just Do It campaign.

Just days before, arbitrator Stephen Burbank denied the NFL’s motion for summary judgment on Kaepernick’s collusion claim. This raises a number of questions as to where the collusion case goes from here, including whether the Nike campaign may affect the outcome of the proceedings.

The Nike campaign clearly connotes the fact that Kaepernick, despite obvious on field talents, has not been signed by an NFL team largely due to the fact that he has protested by kneeling during the national anthem.

The advertisement includes a black-and-white photograph of Kaepernick’s face with the phrase “Believe in something. Even if it means sacrificing everything.” Kaepernick and Nike are capitalizing on the fact that he has been excluded from the NFL.

This has caused significant backlash among fans who disagree with Kaepernick’s protests, some of whom have taken to burning their Nike apparel, though the campaign certainly appears to be a success from a bottom-line standpoint with Nike stock reaching all-time highs last week.

The NFL, for its part, has remained relatively neutral on the campaign itself, stating, in part: “[t]he social justice issues that Colin and other professional athletes have raised deserve our attention and action.” The cautious approach is surely influenced by the pending collusion case, but perhaps even more so by the NFL’s exclusive apparel contract with Nike, worth more than $1 billion dollars.

So could the Nike campaign be a detriment to Kaepernick’s case? The answer is likely no, but it is certainly an argument that the NFL will make.

Article 17 of the NFL-NFLPA collective bargaining agreement governs this matter and details anti-collusion provisions. To prevail, Kaepernick will need to show that two or more teams, or the league and at least one team conspired against him, whether express or implied, depriving him of a bargained for right. (CBA, Art. 17, Sec. 1 – Prohibited Conduct).

The Federal Rules of Evidence apply to grievance proceedings, thus, Nike’s decision to use Kaepernick in its campaign is likely irrelevant on the merits of the collusion case. Expect arbitrator Burbank to exclude any reference to Nike and other third-parties (perhaps including President Donald Trump), at least as to the merits of whether collusion occurred.

Whether Kaepernick’s deal with Nike influences his compensable damages is a slightly closer call. Article 17, Section 9 of the collective bargaining agreement defines compensatory damages as the amount by which a player is injured as a result of a violation of Section 1.

Kaepernick will argue that this definition should be read narrowly to mean that damages are those affecting his actual employment with the league.

The NFL would counter that the definition should be read to mean not only on-field player contracts, but contracts ancillary thereto, including endorsements. Whether the NFL prevails could have profound effects because a finding of collusion would entitle Kaepernick not only to compensatory damages, but punitive damages in an amount equal to two times the compensatory amount.

Kaepernick’s argument that the compensatory damages definition should be read narrowly is likely bolstered by the fact that he has been a Nike endorser since before the alleged collusion took place, such that his most recent campaign with Nike should not be considered “a result of” the collusion, and thus, not a mitigating factor as to damages.

Ultimately, the Nike campaign is only going to be, at most, an ancillary issue in the collusion trial. The case is certainly moving forward, and the potential outcome remains in doubt.

Overcoming the league’s attempt at summary judgment was an important step, but the reality is that collusion is difficult to prove, even if, circumstantially, it appears obvious that Kaepernick is being systematically excluded from the league due to his beliefs and actions. The most difficult thing for Kaepernick to prove will be that the teams are actually working in concert.

For example, Kaepernick was reportedly offered an opportunity to meet with, and potentially sign a contract with the Seattle Seahawks this offseason, but his visit with the team was called off after he refused to say he would stop kneeling during the anthem.

The Denver Broncos also reportedly had interest in Kaepernick, but expressed concern about his means of activism. Even taking these reports as true, it does not prove collusion.

Kaepernick would still need to prove that the Seahawks and Broncos, for example, took such efforts in concert with each other or with the league as a whole.

Simply, it does not matter if a team chooses not to sign Kaepernick, even if they believe he is more talented that quarterbacks on their current roster. He will need to prove that his exclusion is a result of an implied or explicit agreement among teams to exclude him.

Barring the proverbial “smoking gun,” Kaepernick will likely need to build his case for implied collusion. Arbitrator Burbank felt that there are enough facts to preclude summary judgment, but whether Kaepernick can meet his ultimate burden is another matter. Kaepernick must demonstrate collusion by a “clear preponderance of the evidence.” (CBA, Art. 17, Sec. 5).

Still, that Kaepernick remains in the public eye with the recent Nike campaign, and the fact that its motion for summary judgment was defeated is surely a concern for the NFL. The matter is likely to proceed to trial before the end of 2018, which the league hoped to avoid. Even though the proceedings are private, disclosure of sensitive information is inevitable now.

The threat of monetary damages remains significant, too. And, though unlikely, if Kaepernick can prove that 14 or more teams colluded, this would amount to “willful collusion” and would give the NFLPA the right to terminate the entire collective bargaining agreement. (CBA, Art. 17, Sec. 16). This could precipitate a period of labor unrest with players already suggesting that a lockout is likely when the current labor pact expires.

With a prominent role with Nike, and a potentially impactful forthcoming trial against the NFL, don’t expect Colin Kaepernick to fade into the background any time soon.

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