Federal and state antitrust laws prohibit agreements that attempt to restrain trade in various forms. This applies to New Jersey employment disputes when competing businesses agree not to hire one another’s employees, or to set limits on wages or benefits. This type of unlawful activity by employers is commonly known as “collusion.” In addition to statutes, collective bargaining agreements (CBAs) also often include anti-collusion provisions. A professional football player recently settled a dispute with the National Football League (NFL), in which he alleged that the league and its individual teams colluded to deprive him of job opportunities because of his participation in a controversial protest. The dispute was submitted to arbitration under the terms of the CBA between the NFL and players. It was styled Kaepernick v. NFL, et al, but it was not a lawsuit filed in a court of law.
At the federal level, the Sherman Antitrust Act of 1890 prohibits any “contract…in restraint of trade or commerce among the several States.” 15 U.S.C. § 1. This has been interpreted very broadly over the years to apply to a wide range of commercial activities, including employment. Similarly, the New Jersey Antitrust Act prohibits “contract[s]…in restraint of trade or commerce, in this State.” N.J. Rev. Stat. § 56:9-3.
The Kaepernick case cited Article 17 of the CBA between the NFL and the NFL Players Association (NFLPA), which has been in effect since August 4, 2011. The CBA is binding on the NFL and its thirty-two teams, also known as clubs. Section 1(a) of Article 17 prohibits clubs from “enter[ing] into any agreement, express or implied, with the NFL or any other Club, its employees or agents to restrict or limit individual Club decision-making” with regard to hiring decisions. Remedies, addressed in §§ 8 and 9 of Article 17, include termination of existing contracts and compensatory damages.
The claimant in Kaepernick joined the NFL in 2011, when he was a second-round draft pick by the San Francisco 49ers. He was the starting quarterback for the 49ers in 2013 in Super Bowl XLVII, and started in that position at various times for several years. In 2016, he began sitting during the U.S. national anthem at the beginning of games in protest of racial in justice. He switched from sitting to kneeling during the anthem, and other players also began kneeling. This form of protest proved controversial for some people, with the U.S. president and other political leaders speaking out against the players who knelt. The claimant opted out of his contract with the 49ers in early 2017 in order to become a free agent. He has remained unsigned to this day, in what some observers have described as blackballing.
In the grievance, filed in November 2017, the claimant alleges that the NFL and its teams colluded to deprive him of opportunities to sign with a team “in retaliation for [his] leadership and advocacy for equality and social justice and his bringing awareness to peculiar institutions still undermining racial equality in the United States.” Kaepernick, grievance at 2. The grievance asserts that the NFL and the clubs violated Art. 17, § 1 of the CBA. The parties entered into a confidential settlement agreement in February 2019.
The Resnick Law Group’s knowledgeable and experienced employment attorneys represent employees, former employees, and job seekers in New Jersey and New York. Please contact us today online, at 973-781-1204, or at 646-867-7997 to schedule a confidential consultation to see how we can help you.
More Blog Posts:
FTC Settles Case Alleging Collusion Among Employers to Keep Pay Rates Low, The New Jersey Employment Law Firm Blog, October 4, 2018
Pro Football Player’s Grievance Accuses Teams of Improper Collusion, The New Jersey Employment Law Firm Blog, December 15, 2017
Court Rejects Proposed Settlement in Class Action Lawsuit Alleging Wage Fixing by Silicon Valley Employers, The New Jersey Employment Law Firm Blog, October 23, 2014