By Monica Moorehead
October 17, 2017

As the National Football League completed the sixth week of its 2017 season, Colin Kaepernick, the former San Francisco 49ers quarterback and Super Bowl star, still has not been signed to a new team. Kaepernick became a free agent in March.

Kaepernick ignited a wave of protest against police brutality and racist oppression during the 2016 season when he consistently took a knee during the national anthem before NFL games.

Before the new season began, Kaepernick expressed his hope of playing in 2017, but that has not happened yet. In his absence and in solidarity with his cause, many of his former teammates, including Eric Reid, and players from other teams continue to take a knee.

A number of teams have injured quarterbacks, such as Aaron Rodgers of the Green Bay Packers, who Kaepernick could replace. Rodgers has gone on record with supporting Kaepernick being on a team.

In response to his being whiteballed by the NFL bosses’ hierarchy, Kaepernick announced on Oct. 14 that he is filing a grievance against NFL owners under the current collective bargaining agreement for collusion in denying him employment.

Kaepernick’s lawyer, Mark Geragos, released the following statement on Twitter: “We can confirm that this morning we filed a grievance under the CBA on behalf of Colin Kaepernick. This was done only after pursuing every possible avenue with all NFL teams and their executives.

“If the NFL (as well as all professional sports leagues) is to remain a meritocracy, then principled and peaceful political protest — which the owners themselves made great theater imitating weeks ago [following Trump’s Sept. 22 speech labeling the players as SOBS — WW] — should not be punished and athletes should not be denied employment based on partisan political provocation by the Executive Branch of our government. Such a precedent threatens all patriotic Americans and harkens back to our darkest days as a nation. Protecting all athletes from such collusive conduct is what compelled Mr. Kaepernick to file his grievance.

“Colin Kaepernick’s goal has always been, and remains, to simply be treated fairly by the league he performed at the highest level for and to return to the football playing field.”

The National Football League Players Union issued this press release on Oct. 15: “Our union has a duty to assist Mr. Kaepernick as we do all players and we will support him. The NFLPA has been in regular contact with Mr. Kaepernick’s representatives for the past year about his options and our union agreed to follow the direction of his advisors throughout that time. We first learned through media reports today that Mr. Kaepernick filed a grievance claiming collusion through our arbitration system and is represented by his own counsel. We learned that the NFL was informed of his intention to file this grievance before today. We are scheduling a call with his advisors for early this week.”

Labor laws favor players’ protests

There are 32 teams in the NFL. Fifteen owners of those teams are outright billionaires who made their fortunes long before buying a team. Some of these fortunes are rooted in real estate, oil, gas, energy and well-known monopolies like Home Depot and Microsoft.

Although NFL players, on average, are very well paid compared to the vast majority of workers, nonetheless compared to the billionaire and multimillionaire owners these players are grossly underpaid. They also have the shortest playing careers by comparison with other professional athletes in sports like basketball, baseball and hockey. In addition, severe injuries, especially concussions, not only shorten football careers but also players’ lives.

The NFL owners are no different from any other bosses who super-exploit the labor of their workers to make billions of dollars in lucrative profits. The NFL made $13 billion in total revenues in 2016, more than any other sport. Out of that total, each of the 32 teams split $7.8 billion. (marketwatch.com)

Because the NFL teams and their players have an employer-employer relationship, there are federal laws protecting the players’ protests during the anthem. According to the Oct. 12 New York Times: “To be protected under federal labor law, an employee’s action must be conducted in concert with co-workers, it must address an issue of relevance to their job, and it must be carried out using appropriate means. [E]xperts point to a 1978 case in which the Supreme Court ruled that workers have a right to engage in political advocacy as long as the political theme relates to their job. In 2008, the general counsel of the National Labor Relations Board, which enforces federal labor law, issued a guidance making clear that workers had a right to publicly demonstrate for or against immigration legislation pending in Congress, though they didn’t have the right to skip work to do so.”

After Jerry Jones threatened on Oct. 7 to bench Cowboys players for kneeling during the anthem, Local 100 of the United Labor Unions in Texas filed a complaint against Jones saying: “The employer, evidenced by repeated public statements, is attempting to threaten, coerce and intimidate all Dallas Cowboys players on the roster in order to prevent them from exercising concerted activity protected under the act by saying that he will fire any players involved in such concerted activity.” (salon.com, Oct. 11)

Stephen Ross, owner of the Miami Dolphins, is also threatening to bench players. What’s more, the NFL owners say they are “considering” a change in the league’s collective bargaining agreement that would add a clause to force players to stand during the anthem. (Sports Illustrated, Oct. 10)

The owners, however, will meet continued resistance. The players not only have a political movement on their side, but also the labor laws to back them up.