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In the beginning, the national anthem protest was all Colin Kaepernick. Then it was Kaepernick’s former San Francisco 49ers teammate, safety Eric Reid. The National Football League Players Association confirmed that the 26-year-old Reid—who joined in kneeling with Kaepernick during the National Anthem—had filed a collusion grievance against the NFL. Los Angeles attorneys Mark Geragos and Ben Meiselas, both of who represent Kaepernick, represented Reid in the complaint.
A good player who remains unemployed
To the surprise of many NFL observers, Reid became a free agent. He spent five seasons with the San Francisco 49ers, who drafted the 6′ 1″, 213-pound safety as the No. 18 pick in the 2013 NFL draft. As a rookie, he was named first-team All-Pro and selected to the Pro Bowl. Although Reid has not made the All-Pro or Pro-Bowl team since then, the former first-round pick from Louisiana State University (LSU) is still a well-respected starting safety. Versatile and hardworking are terms often used to describe his skills between the lines. Since starting at the age of 26 years, Reid should have many productive seasons ahead of him. Off the field, Reid is regarded as a good teammate, and he has not encountered any off-field problems.
The fact that Reid remained a free agent with training camps looming sparked speculation and questions. While some NFL observers attempted to explain away Kaepernick’s absence from the NFL because his quarterbacking skills weren’t a good fit for specific teams’ offenses and that his high profile didn’t fit the mold of a backup quarterback, those arguments didn’t apply to Reid.
That Reid engaged in the national anthem protest aggravated at least one owner of a team in need of a safety. When Reid visited the Cincinnati Bengals in April 2018, owner Mike Brown repeatedly asked Reid about his national anthem protest. Brown also reportedly told Reid he intended to forbid Bengals players from protesting. Reid had previously indicated he might not participate in the protest in 2018. The Bengals ultimately did not sign Reid, and sources say the Bengals did not offer a contract.
Could Reid win a collusion claim? Could the NFL defeat it?
Reid’s grievance mirrored the one filed by Colin Kaepernick the year before. His complaint agreed with the requirements of Article 17 of the collective bargaining agreement (CBA) signed by the NFL and the NFLPA. Article 17 relates to acts of collusion that occurred within the previous 90 days. For Reid, the act or acts of collusion against him must have taken place some time in the pre-season months of 2018.
Collusion, as defined in the grievances, requires that at least two NFL teams, or the NFL and at least one team, conspired to deny a player of a collectively bargained right. Like Kaepernick, Reid’s grievance is defined as his right to sign with an NFL team.
To prove collusion, Reid must show, by a clear preponderance of the evidence, there was an agreement or formal understanding between at least two teams, or the NFL and at least one team, to not sign him. Each team deciding, on its own, to not offer Reid a contract would not constitute collusion. This would be true even if each team, on its own, decided not to offer Reid a contract solely because each team’s owner disagreed with Reid’s politics and/or Reid’s position on the national anthem.
The discussion of collusion in the NFL revolves around various strains of the current political debate, the key to proving collusion, as a legal concept, is not about politics. Instead, a player must establish that there was an agreement to exclude him. This necessitates proof of a “meeting of the minds.” Collusion derives from the Latin word “colludere.” Translated, colludere means to “have a secret agreement.” What does this mean for both Reid and Kaepernick? They must prove in their grievances that a team doesn’t want to sign either, because they won’t stand for the anthem. Yet that isn’t sufficient. That team must have worked out some sort of arrangement with another team or the league.
Reid and his attorneys, then, needed to offer evidence and/or witness testimony of an agreement. Possible evidence could include videos, recordings, text messages, emails, social media exchanges, and phone call transcripts of executives from different teams interacting with one another about Reid. The more persuasive the evidence that the teams’ executives decided it was best not to sign Reid, the more convincing a collusion claim would be for Reid. Likewise, if Reid believed that witnesses with decision-making authority at NFL teams or the league itself would admit under oath that they discussed not signing Reid, Reid may have been able to convince an arbitrator to infer that there was collusion.
The New York Times published a transcript of an October 2017 meeting between a group of NFL owners, league officials, and players—including Reid. This article might have played a key role in Reid’s grievance. The meeting featured several owners expressing worry that Kaepernick’s actions had angered President Donald Trump, causing POTUS to lash out against the NFL. Owners are worried that Trump, who advocates for tax law changes that would financially disadvantage some owners, would pursue a policy agenda that harms the league. If owners’ concerns about Trump made them inclined to collude against Kaepernick, such logic might hold true concerning Reid.
The NFL could have argued that there was no collusion and that Reid’s unemployment had nothing to do with illegalities. The NFL can point to other talented safeties who were still without contracts for the 2018 season. It was also uncertain what kind of contract Reid was seeking: if he demanded more money than teams were willing to pay him, he would be a victim of unrealistic expectations.
At the time, it was thought that Reid’s grievance could take time and wouldn’t necessarily end if an NFL team signed him
Reid’s grievance extended well into the 2018 regular season. (Kaepernick’s grievance was filed the prior October) It was thought an arbitrator would determine if Kaepernick showed a clear preponderance of the evidence, with Reid following the same course.
As with Kaepernick, Reid’s grievance didn’t necessarily have to end with arbitration. If either player lost his grievance, he could file a federal lawsuit against the NFL (and any colluding teams) in U.S. District Court. In that situation, the player would petition a federal judge to vacate the arbitration award. A federal lawsuit would face steep odds: judges are obligated under federal law to review arbitration awards with a high degree of deference.
Reid’s collusion grievance could continue even after being signed by another NFL team. Collusion doesn’t necessitate a league-wide conspiracy, just two or more teams, or the league and one team, colluding.
Proving collusion could potentially net Reid a lot of money. Under the CBA, Reid would first be entitled to compensatory damages for the amount of money he lost due to collusion. Damages are difficult to project. If Reid remained unemployed, compensatory damages would weigh the contracts of other NFL safeties comparable to Reid in terms of age and talent, potentially allowing for a significant compensatory damages award.
As per the CBA, Reid would also be awarded “punitive damages” twice the value of his compensatory damages. In other words, if he won the collusion case, he would receive 3x the compensatory damages.
Reid and the NFL might settle their grievance proceeding before an arbitrator’s decision. As with his former teammate Colin Kaepernick, Reid’s case bears consideration, as it unfolds like an unprecedented, strange legal Kabuki.
UPDATE: In February of 2019, the NFL and Colin Kaepernick announced that they had reached a settlement in the case in which Kaepernick accused the NFL and its 32 teams of colluding to keep him from playing because he decided to kneel during the national anthem. The related collusion grievance by Eric Reid, now playing safety for the Carolina Panthers, was resolved, as well.
The settlement’s terms were not disclosed, leaving those in and around the NFL speculating as to what it cost the league and team owners to avoid a hearing in the case. Counsel for Mr. Kaepernick and Mr. Reid engaged in an ongoing dialogue with representatives of the NFL, and those discussions resolved the pending grievances. The matter’s resolution was subject to a confidentiality agreement, so there was to be no further comment by any party involved.
Your legal matter may not have the same high-profile complications and nuances as Kaepernick and Reid’s. However, if you need the experienced legal assistance of a family lawyer Rockville MD, Daniel J. Wright can provide the representation you need in areas such as family law, criminal defense, or business and civil law.
