Gregg Jarrett: Colin Kaepernick's case against the NFL is as lame as his skills at quarterback

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.