Take a Knee: The $17 Million Cost of an Athlete’s First Amendment Right
Joseph Samuels*
I. Introduction
In the past year, the National Football League (NFL) and other professional sports organizations have been at the center of national attention as numerous players protest racial injustice and police brutality in America by taking a knee and/or linking arms when the national anthem is played before a game begins. Mark Sandritter, A Timeline of Colin Kaepernick’s National Anthem Protest and the Athletes Who Joined Him, Sbnation (Sept. 25, 2017, 10:28 AM), https://www.sbnation.com/2016/9/11/12869726/colin-kaepernick-national-anthem-protest-seahawks-brandon-marshall-nfl. This is not the first occasion where professional athletes have been the focus of national criticism for their stance on prominent social issues. See, e.g., Jonathan Falk & Brad Eric Scheler, Note, The Professional Athlete and the First Amendment: A Question of Judicial Intervention, 4 Hofstra L. Rev. 417, 417–18 (1976) (discussing Kareem Abdul-Jabbar’s public attack on the gag-rule, a provision in many professional athletes’ contracts limiting their freedom of speech). See generally Clay v. United States, 403 U.S. 698 (1971) (reversing the conviction of Cassius Clay, also known as Muhammad Ali, for refusing to submit to induction into the armed forces due to his moral objection to certain types of war, as well as his political and racial objections).
Recently, Colin Kaepernick, the NFL quarterback who became infamous for not standing during the national anthem, “has filed a grievance against the NFL, claiming that team owners colluded to not hire him as punishment for starting a wave of . . . [athletes] kneeling during the [n]ational [a]nthem.” Keshia Hannam, Colin Kaepernick Is Filing a ‘Collusion’ Complaint Against the NFL, Fortune (Oct. 16, 2017), http://fortune.com/2017/10/16/kaepernick-collusion-lawsuit-nfl/.
II. Background
On August 14, 2016, Colin Kaepernick, the starting quarterback for the San Francisco 49ers, sat on the bench during a performance of the national anthem before a preseason football game. See Sandritter, supra. Soon after the preseason, a picture of the 49ers’ sideline was posted on Twitter, and national attention focused on learning the reason why Kaepernick sat during the anthem. Id. In a statement, Kaepernick told the press that he was protesting police brutality and racial injustice, and “giv[ing] a voice to people who didn’t have one.” Id. “Organizations, coaches, and players have taken stances either in support or opposition of the actions by . . . [players] surrounding these demonstrations and have drawn the proverbial ‘line in the sand’ regarding the moral and political correctness of the actions[,]. . . . effectively separat[ing] the political conversation into sides.” Bobby Bramhall, An Employment Stance on Taking a Knee, 27 J. Legal Aspects Sport 109, 109 (2017).
III. Reactions to the Protest
Kaepernick’s “protest[] immediately sparked political controversy.” Id. Since Kaepernick began his protest, it seems that “almost everyone has had a little something to say on the matter.” Kofie Yeboah, A Timeline of Events Since Colin Kaepernick’s National Anthem Protest, Undefeated (Sept. 6, 2016), http://theundefeated.com/features/a-timeline-of-events-since-colin-kaepernicks-national-anthem-protest/. Fellow professional athletes have expressed solidarity with Kaepernick’s protest and expression of his First Amendment right to free speech. See Soccer Player Megan Rapinoe Kneels as ‘Nod to Kaepernick,’ ESPN (Sept. 7, 2016), http://www.espn.com/espnw/sports/article/17467341/nwsl-seattle-reign-us-women-national-team-player-megan-rapinoe-national-anthem-kneel-nod-san-francisco-49ers-quarterback-colin-kaepernick; see also, e.g., Sandritter, supra (providing a timeline of athletes kneeling and sitting during the national anthem up to August 13, 2017); Jesse Washington, Still No Anthem, Still No Regrets For Mahmoud Abdul-Rauf, Undefeated (Sept. 1, 2016), https://theundefeated.com/features/abdul-rauf-doesnt-regret-sitting-out-national-anthem/ (discussing Mahmoud Abdul-Rauf’s protest against the national anthem in 1996 and quoting him as saying, “Look at all of what . . . [Kaepernick] has to lose by taking this position . . . . He’s willing to put all of that on the line because, to him, truth is more important than those things. Justice and equality is more important than those things.”). However, Nate Boyer, a former NFL player who also served in the Army Special Forces, was greatly upset by Kaepernick’s decision to protest the anthem. Patrick Jennings, Colin Kaepernick: From One Man Kneeling to a Movement Dividing a Country, BBC (Oct. 11, 2017), http://www.bbc.com/sport/american-football/41530732. Boyer wrote Kaepernick a letter expressing his opinion and wanted to know what made Kaepernick so upset that he would protest in such a way. Id.
Kaepernick’s protest has also elicited responses from former President Obama and President Trump. Yeboah, supra; NFL: Donald Trump Says Players Protesting During US National Anthem Should Be Fired, BBC (Sept. 23, 2017), http://www.bbc.com/sport/american-football/41371179 (quoting President Trump’s statements that NFL owners should throw players off the field or fire them when they disrespect the flag).
III. The Lawsuit
Kaepernick opted out of his $16.9 million contract in March 2017 when it became apparent that he would likely be cut from his team before the start of the next season. See Chris Isidore, How Much Could Colin Kaepernick Win in His Collusion Case Against the NFL?, CNN Money (Oct. 17, 2017, 4:45 PM), http://money.cnn.com/2017/10/17/news/colin-kaepernick-collusion/index.html. Since opting out, Kaepernick has not been picked up by any NFL organization, even though he has had a relatively successful career as a quarterback. See Colin Kaepernick Files Grievance Against NFL over ‘Collusion’ Not to Sign Him, BBC (Oct. 16, 2017), http://www.bbc.com/sport/american-football/41630253. On October 15, 2017, Kaepernick filed his grievance against the NFL, claiming that “team owners colluded to keep him from being signed” to an NFL team. Ahiza Garcia, Colin Kaepernick Files Grievance, Says NFL Owners ‘Punished’ Him for Protesting, CNN Money (Oct. 16, 2017, 11:15 AM), http://money.cnn.com/2017/10/15/news/colin-kaepernick-nfl/index.html?iid=EL.
According to the NFL’s collective bargaining agreement (CBA), the agreement “prohibits teams from conspiring to make decisions about signing a player.” Mark Maske, Colin Kaepernick Files Grievance Accusing NFL Teams of Colluding Against Him, Wash. Post (Oct. 15, 2017), https://www.washingtonpost.com/news/sports/wp/2017/10/15/colin-kaepernick-makes-plans-to-pursue-collusion-case-against-nfl-owners/?utm_term=.1d0f89456264. However, the agreement “also says the mere fact that a player is unsigned and evidence about the player’s qualifications to be on an NFL roster do not constitute proof of collusion.” Id. Kaepernick’s argument relies upon the fact that the “collusion” between teams can be “implied.” See Michael McCann, Some Colin Kaepernick Supporters Are Crying Collusion, but What Does That Really Mean?, Sports Illustrated (Mar. 24, 2017), https://www.si.com/nfl/2017/03/24/colin-kaepernick-protest-nfl-collusion-free-agency (“[T]eams cannot enter into any agreement—whether express or even implied—to refrain from negotiating with a particular player.”).
According to the terms of the CBA, Kaepernick is required to submit to arbitration in order resolve his dispute with the NFL. See Maske, supra. However, Article 17, Section 6 of the CBA may present a problem for Kaepernick’s claim:
The failure by a Club or Clubs to negotiate, to submit Offer Sheets, or to sign contracts with . . . Players . . . shall not, by itself or in combination only with evidence about the playing skills of the player(s) not receiving any such offer or contract, satisfy the burden of proof set forth in Section 1 above. Nat’l Football Ass’n, Collective Bargaining Agreement (Aug. 4, 2011), https://nfllabor.files.wordpress.com/2010/01/collective-bargaining-agreement-2011-2020.pdf.
IV. Conclusion
It may be clear to some that the NFL and club owners conspired against Kaepernick because of the negative publicity sparked by his protest. Maske, supra. Nonetheless, based on the evidence that has been put forward so far, the success of Kaepernick’s claim remains uncertain unless some actual evidence of collusion exists. See Nat’l Football Ass’n, supra. However, no matter the result of Kaepernick’s lawsuit, the impact of his protest will continue to be felt for the foreseeable future.
*Joseph Samuels is a second-year law student at the University of Baltimore School of Law, where he serves as a staff editor for the University of Baltimore Law Review. Joseph currently works as a law clerk at the Maryland Office of the Attorney General Organized Crime Division. He has also served as an intern for the Honorable Shirley M. Watts at the Maryland Court of Appeals and is a member of the Royal Graham Shannonhouse III Honor Society.
University of Baltimore Law Review 