Daniel J. Wright
Eric Reid, Anthem Protests and NFL Collusion
In the beginning was Colin Kaepernick. Now it is Kaepernick’s former San Francisco 49ers teammate, safety Eric Reid. The National Football League Players Association has confirmed the 26-year-old Reid—who joined Kaepernick in kneeling during the National Anthem—has filed a collusion grievance against the NFL. Los Angeles attorneys Mark Geragos and Ben Meiselas, both whom represent Kaepernick, will represent Reid in the grievance.
A good player who remains unemployed
To the surprise of many NFL observers, Reid is currently a free agent and not drawing much interest from teams. He spent the last five seasons with the 49ers, who drafted the 6′ 1″, 213-pound safety with 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 (LSU) is still a respected starting safety. Versatile and hardworking are oft used terms to describe his skills between the lines. At only 26 years old, Reid should have several 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 remains a free agent with the start of training camps less than three months away has sparked speculation and questions. While some NFL observers attempt to explain away Kaepernick’s absence from the NFL on grounds that his quarterbacking skills aren’t a good fit for particular teams’ offenses and that his high profile doesn’t fit the mold of a backup quarterback, those arguments don’t apply to Reid.
The fact is that Reid engaging in the national anthem protest has 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 intends to forbid Bengals players from protesting. Reid had previously indication he may not participate in the protest in 2018. The Bengals ultimately did not sign Reid and sources say the Bengals did not offer a contract. At this writing, Reid has not visited any other teams in the off-season.
Can Reid win a collusion claim? Can the NFL defeat it?
Reid’s grievance will mirror the one filed by Colin Kaepernick last year. His grievance must agree 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 sometime between the start of February and now.
Collusion, defined here, requires 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.
In order to prove collusion Reid must show, by a clear preponderance of 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. Rather, 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 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, need 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 teams’ executives decided it would be advantageous to not sign Reid, the more persuasive a collusion claim for Reid. Likewise, if Reid believes 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 be able to convince an arbitrator to infer that there was collusion.
The New York Times recently published a transcript of an October 2017 meeting between a group of NFL owners, league officials and players—including Reid, an article which will in all likelihood play 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 with regard to Reid.
The NFL will argue that there was no collusion and that Reid’s unemployment has nothing to do with illegalities. The NFL can point to other talented safeties who are still without contracts for the ’18 season. It’s also unknown what kind of contract Reid seeks: if he demands more money than teams are willing to pay him, he’s a victim of unrealistic expectations.
Reid’s grievance will take time and won’t necessarily end if an NFL team signs him
Reid’s grievance will probably extend well into the 2018 regular season. (Kaepernick’s grievance was filed last October, and remains unresolved.) It will be up to an arbitrator to determine if Kaepernick has shown a clear preponderance of evidence. Reid will follow the same course.
As with Kaepernick, Reid’s grievance doesn’t necessarily have to end with arbitration. If either player loses his grievance, he can file a federal lawsuit against the NFL (and any colluding teams) in U.S. District Court. 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.
Should an NFL team sign Reid, his collusion grievance might continue anyway. Collusion doesn’t necessitate a league-wide conspiracy, just two or more teams, or the league and one team, colluding.
Proving collusion would 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, since an NFL team could still sign Reid before the start of the 2018 regular season. If Reid remain unemployed going into the 2018 season, compensatory damages would weigh the contracts of safeties comparable to Reid in terms of age and talent. Potentially, a large 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 wins the collusion case, he would receive 3x the compensatory damages.
Reid and the NFL might reach a settlement in their grievance proceeding before an arbitrator’s decision. As with his former teammate Colin Kaepernick, Reed’s case bears watching as it unfolds like an unprecedented, strange legal Kabuki.