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