A Legal Perspective

On Feb. 15, former quarterback for the San Francisco 49ers, Colin Kaepernick, and his attorney announced they had entered into a settlement agreement with the NFL. Kaepernick had filed a grievance under the NFL’s Collective Bargaining Agreement (CBA) for collusion, alleging that team owners agreed amongst themselves to keep him off the field because of his protest. 

It’s been quite a journey leading up to this point. If you can remember, Kaepernick first started making waves back in 2012 when he came off the bench and led the 49ers to victory after the starting quarterback suffered a concussion. The 49ers rode an impressive victory streak, led by their new quarterback, all the way to the Super Bowl where they were finally taken down by the Baltimore Ravens. Despite the loss, the 49ers had found their star quarterback.  

Kaepernick continued to shine on and off the field throughout the 2013 season. He even starred in a popular Beats by Dre headphones commercial. The 49ers made it all the way to the NFC championship game with Kaepernick putting up impressive stats all season.

In a nail biter, the eventual Super Bowl champions, Seattle Seahawks, defeated the 49ers, crushing their hopes of back-to-back Super Bowl appearances. This was the last year Kaepernick’s football performance would garner him attention.  

The following two years saw a precipitous decline in Kaepernick’s gameplay. Teams throughout the NFL had caught onto the 49ers game plan. With Kaepernick firmly at the helm in 2014, the 49ers failed to make the playoffs for the first time in several years.  

In 2015, struggling under new head coach Jim Tomsula, Kaepernick threw for five interceptions through the first half of the season and ended the season with one of the worst quarterback ratings in the league. He lost his starting job to Blaine Gabbert in week nine, and the 49ers later placed him on season ending injured reserve for a shoulder injury.   

Heading into the 2016 season with another new head coach, Chip Kelly, Kaepernick expressed interest in being traded. On the gridiron, this season went no better with Blaine Gabbert starting through week six until Kaepernick made his return and closed out the 49ers’ lackluster season. Off the gridiron however, Kaepernick appeared to kneel himself back into the media’s spotlight.

His protest began the third preseason game of the season when he sat down during the Star-Spangled Banner and later switched to kneeling for the final preseason game.Kaepernick’s protest continued until the season ended, and he officially opted out of his contract and entered free agency

When asked to comment on his protest, Kaepernick avowed he could not “show pride in a flag[…]that oppresses black people and people of color.” Many people believed that by Kaepernick standing up for what he believed in, by refusing to stand, he had become a hero in a movement meant to raise awareness against perceived racism, social injustice and police brutality.   

Mainstream media outlets, including popular sports programs such as ESPN and SportsCenter, capitalized on Kaepernick’s stance to revitalize his stardom. Hundreds, if not thousands, of articles and news segments were dedicated to his protest.  

Nike unveiled Kaepernick as one of the faces of its 30th anniversary “Just Do It” campaign. Nike extended its almost expired endorsement deal it had with Kaepernick since he entered the league in 2011 and renegotiated it into a massive, multi-year deal, which includes his own branded clothing line.

Despite not actually playing in the league anymore, sports experts say Kaepernick’s “top of the line” contract could be worth millions of dollars per year.  

Nike quickly launched its “Dream Crazy” video featuring Kaepernick as its narrator. “Believe in something, even if it means sacrificing everything.” While the video features a number of famous athletes including Lebron James, Serena Williams and Odell Beckham Jr., the addition of Kaepernick seemed to imply Nike believes and supports Kaepernick’s collusion allegation against the NFL.

This appears to conflict with a deal Nike currently has with the NFL to be the exclusive uniform provider for the league’s 32 teams. Again, the media cheered this ad campaign as a win for Kaepernick and his protest. Nike cheered the loudest when sales increased as a result of its new slogan.  

The recent settlement with the NFL has Kaepernick fans in the media proclaiming another victory. Many people perceived this as a court vindication of Kaepernick’s allegations. 

This isn’t exactly true.  

The NFL’s Collective Bargaining Agreement (CBA) serves as binding authority over the employer-employee relationship the NFL has with its players, containing the rules and regulations the players, team owners and officials must follow.[1] If a player has an issue with the league, a labor dispute, the NFL’s CBA mandates the players file a grievance and resolve their dispute through the leagues arbitration procedure, rather than going to court.

These procedures are alternatives to litigation meant to allow for faster, cost-effective and more private and practical resolutions to disputes.

The rules laid out in the NFL’s collective bargaining agreement make clear what Kaepernick must show to prove collusion. Under the CBA’s Article 17, the mere fact that a player has not been signed by a team is, by itself, not enough.

Kaepernick must be able to present more evidence for an arbitrator to find the NFL liable.  While he did convince the NFL's arbitrator to move the case foward against the NFL's motion for summary judgement, Kaepernick and the NFL entered into a settlement agreement before collusion was even argued in a “full merits” arbitration hearing on the issue

settlement is a straightforward legal principle. The plaintiff voluntarily agrees to dismiss their case against the defendant, and in exchange, the defendant agrees to conform with terms negotiated with the plaintiff outside of the litigation, or in this case, outside of arbitration procedure.

Often, the settlement is for an amount of money, although, there is no requirement that it be monetary. And often parties choose to keep their settlement agreements private. Here, Kaepernick agreed to drop his grievance with the NFL and in exchange, he likely received some form of payment.

A confidentiality agreement was signed by both parties which means the exact terms of the agreement will not be released. Pursuant to this agreement, neither party may publicly comment about what occurred during the arbitration process. In effect, this puts a permanent end to Kaepernick’s accusations against his former employer.   

By definition, this out-of-court settlement is not an in-court win for Kaepernick’s protest or evidence of collusion because of it. At no time did Kaepernick’s grievance even make it to the final hearing on its merit.

If Kaepernick or mainstream media considers accepting the NFL’s money in exchange for giving up on his lawsuit a win, a more fitting Nike slogan may be, “Believe in something, until you settle.”  


[1]Eric L. Einhorn, Between the Hash Marks: The Absolute Power the NFL’s Collective Bargaining Agreement Grants Its Commissioner, 82 Brook. L. Rev. 393 (2016). Available at: https://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1528&context=blr

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