Under the terms of his player’s contract, former San Francisco 49ers quarterback Colin Kaepernick has filed a grievance to look into whether NFL team owners and coaches colluded in order to avoid hiring him after his highly public protests. Constitutional attorney Paul Cambria spoke to both WGRZ and WBEN about Kaepernick’s grievance and whether his case has merit. The full interviews are available on the WGRZ and WBEN websites and a video of the WGRZ interview is below.
When asked by WGRZ if Kaepernick has a case, Mr. Cambria replied, “I think we don’t know yet. What he’s done is this,” he continued. “Under the players’ contract, there’s a provision that says the owners, coaches, et cetera, cannot get together and agree not to negotiate with a player. And it’s pretty obvious what that’s all about, to drive the prices down, so they don’t allow them to do it. So, if he files this grievance, now he’s going to have the right to get text messages, emails and so on to see if he can find where the owners and coaches were talking to one another about him. And I think that’s what this is: a fishing expedition on his part to do it. Because he has to prove that they agreed not to hire him, and I think, really, in his situation, he’s not a star anymore, and so it’s not like, ‘wow, who wouldn’t hire him unless something nefarious is going on?’ Right now, owners can legitimately be saying there’s too much baggage for this guy and it outweighs his worth, his value. So, I think he’s got a tough time.”
Mr. Cambria explained to WBEN that “there’s nothing in the contracts that guarantees people a decision. It’s once they’re hired, then they have a number of rights under the contract. But, you know, there’s nothing that says they have to be hired. And there are consequences of expressing your First Amendment right. Remember, the First Amendment only applies against the government. It doesn’t apply against the NFL. And so it’s not a matter of ‘you violated my First Amendment rights because you didn’t respect my protest.’ So it’ll be interesting to see what they’re seizing on in the contract to file a grievance.”
WBEN asked Mr. Cambria if collusion is difficult to prove. “I think that’s true, especially with all the teams involved. But, in addition to that, is that a cause of action in the first place?” he responded.
“For independent contractors, private businesses like football teams” Mr. Cambria went on, “they can agree not to hire anybody if they want to unless there’s some violation, again, of the players’ agreement. And we wouldn’t know that until we’d reviewed every paragraph of the players’ agreement.”
Mr. Cambria explained to WGRZ that “Barry Bonds in 2008 did the same thing, but he was a star so he was in a position to have a better case and he still couldn’t prove it. He could not prove the collusion and the arbitrator ruled against him.”
When asked if he thought this grievance might be a public relations move on Kaepernick’s part, Mr. Cambria responded, “No, I don’t think so. I think that he’s hoping to find communications. And, if he does, then maybe he can make something out of that. But it’s going to be tough.”
About Paul J. Cambria, Jr.
The chair of Lipsitz Green Scime Cambria’s Criminal Defense Trials and Appeals Practice Area, Mr. Cambria advises clients on criminal trials, criminal appeals, constitutional and First Amendment law, zoning and land use, antitrust, and professional licensing defense. He divides his time between the firm’s offices in Buffalo and Los Angeles.