Can Colin Kaepernick Prove Collusion?

Football player’s grievance a mostly run-of-the-mill employment discrimination claim

After cutting Chad Kelly on Oct. 24, the Denver Broncos need a backup quarterback. And as armchair quarterbacks tend to point out, Colin Kaepernick is a (real) quarterback who reportedly would still like to have a job in the NFL. Whether whispers of any specific team picking up Kaepernick have legs, the pall of his ongoing legal fight with the league hangs over any potential contract talks. One employment law expert weighed in on the nuances of the battle.

Kaepernick filed a grievance under the NFL players’ collective bargaining agreement in October last year, claiming the league and team owners colluded to keep him out. But even though an arbitrator has allowed Kaepernick’s grievance to go ahead in court, the former San Francisco 49ers quarterback still has an uphill battle to prove his collusion claim. Ballard Spahr partner Steve Suflas said evidence of collusion would be necessarily circumstantial, unless Kaepernick has evidence of a smoking gun that would indisputably prove NFL owners got together to keep him out of the league.

“From the teams’ perspective, he’s been out of football for a year-and-a half. That’s a great deal of rust,” Suflas said. He added in most plaintiff discrimination lawsuits, “you’re dealing with a similar situation, because it’s very rare that there’s a smoking gun. And so you’re building your case through circumstantial evidence.”

To read this story and other complete articles featured in the November 5, 2018 print edition of Law Week Colorado, copies are available for purchase online.