Pro Football Player’s Grievance Accuses Teams of Improper Collusion

New Jersey employment statutes and other laws around the country prohibit employers from taking certain adverse actions against employees. Antitrust laws can provide relief for workers when a direct employer-employee relationship might not exist. Laws like the Sherman Act prohibit companies that ostensibly compete with one another from making agreements that impede competition. This is often known as “collusion.” Agreements among companies not to hire one another’s workers, for example, hurt workers by limiting their job opportunities. Colin Kaepernick, a professional football player who has been a controversial public figure in the past year or so, is making similar allegations in a grievance filed against the National Football League (NFL). He is a free agent, but no team has signed him since the controversy gained prominence. Rather than a lawsuit under a law like the Sherman Act, the player is alleging violations of the collective bargaining agreement (CBA) between the players’ union and the NFL. The case could have a national impact, since NFL teams are located all over the country, including two that play in New Jersey.

The Sherman Act prohibits businesses from making “contract[s]…or conspirac[ies] in restraint of trade or commerce among the several States.” 15 U.S.C. § 1. Agreements among market competitors that deliberately restrict or restrain trade, such as price-fixing, clearly violate the Sherman Act. In situations in which the alleged restraint is less obvious, courts use the “Rule of Reason” to determine whether the restriction is anti-competitive or not. Addyston Pipe & Steel Co. v. United States, 175 U.S. 211 (1899).

Agreements among NFL teams could constitute unlawful collusion under a recent U.S. Supreme Court decision. The court held that the creation of a single business entity to handle product licensing for all 32 NFL teams “constitute[d] concerted action that is not categorically beyond the coverage of §1.” American Needle, Inc. v. National Football League, 560 U.S. 183 (2010). It held that courts should apply the Rule of Reason to determine whether such agreements violate antitrust law. While that case dealt with intellectual property, it established that NFL teams are distinct entities that might have distinct economic interests.

Kaepernick is bringing his grievance under the CBA between the NFL and the NFL Players Association (NFLPA). Article 17 of the CBA contains anti-collusion provisions. It prohibits NFL teams, designated as “Clubs,” from “enter[ing] into any agreement…to restrict or limit individual Club decision-making [about] whether to submit or not to submit an Offer Sheet to any Restricted Free Agent; [or] whether to offer or not to offer a Player Contract to any player.” CBA, Art. 17 §§ 1(a)(ii) – (iii). Any player alleging collusion in violation of the CBA can file a grievance, which will be submitted to arbitration.

Kaepernick played quarterback for the San Francisco 49ers for six seasons, beginning in 2011. He opted out of his contract with the team in early 2017, making him a free agent. Since then, no team has offered to sign him, allegedly because of his controversial status. The controversy stems from his decision before a preseason game in 2016 to sit, rather than stand, during the national anthem in protest of alleged racial injustice. He later knelt during the anthem instead of sitting, and numerous other players began kneeling as well. His grievance essentially alleges that NFL teams have “blackballed” him because of his political statements.

If you need to speak to an employment lawyer in New Jersey or New York, contact the Resnick Law Group today online, at 973-781-1204, or at (646) 867-7997.

More Blog Posts:

New Jersey Antitrust Class Action Accuses Employers of “Anti-Poaching” Agreements, The New Jersey Employment Law Firm Blog, May 2, 2017

White House Calls on States to Limit the Scope of Non-Compete Agreements, The New Jersey Employment Law Firm Blog, December 23, 2016

Employment Practices That Violate Antitrust Laws Can Have Both Civil and Criminal Penalties, The New Jersey Employment Law Firm Blog, December 9, 2016

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