Eric Reid, Colin Kaepernick united in legal battle against NFL

With Eric Reid having again followed Colin Kaepernick’s lead, the friends and former San Francisco 49ers teammates face a formidable task in trying to convince an arbitrator that owners have colluded to keep them unemployed.

The first player to kneel alongside Kaepernick to draw attention to racial injustice in 2016, Reid filed a grievance on Wednesday under the NFL’s collective bargaining agreement alleging that owners have conspired to shut him out because of his political activism – the same process Kaepernick initiated back in October 2017. Both Kaepernick and Reid, who are being represented by the same lawyers, believe their decision to demonstrate during the national anthem is the primary reason they’re not on a roster. Proving their claim, however, is another matter.

Kaepernick, an accomplished passer, hasn’t worked since opting out of his contract after the 2016 season (in Kaepernick’s grievance, league officials have already been questioned). Reid, a productive safety, hasn’t received a contract offer in the nearly two months since teams were first permitted to sign free agents. As their cases progress through the system, Kaepernick and Reid could help each other, labor law experts say.

The fact is, Reid’s case “only augments the Kaepernick case, and if anything, Reid’s case is more straightforward and clear-cut because he is … such an outstanding player,” said Stanford Law School professor William B. Gould IV, an expert in labor and discrimination law. “I suppose they could say it’s just that no one is interested in him, but it’s difficult for them to say that with a straight face.”

A former 49ers first-round draft pick, Reid, 26, has started 69 of the 70 games in which he has played. After his rookie season, he was selected to the Pro Bowl. There’s no doubt about it: Reid is a starting-caliber defensive back, NFL scouts say. Kaepernick is better than many of the league’s quarterbacks, some coaches acknowledge privately.

For the NFL, which declined comment, the whole situation is a bad look, said Susan D. Carle, a professor of law at American University Washington College of Law.

“A lot of people believe that Eric Reid would have a job if it weren’t for his having engaged in lawful protest activity. But that’s not the same as proving that there was collusion,” said Carle, an authority on discrimination, labor and employment law. “As a public relations matter, it’s a good thing” for Kaepernick and Reid.

But whether they prevail in arbitration “depends on the strength of the evidence of actual agreements between the teams to not hire either of them. It’s really going to depend on what type of evidence they have.”

It’s all about the details, said Thomas A. Lenz, a lecturer at the University of Southern California Gould School of Law.

“They’re going to matter very much,” Lenz said. The attorneys for Kaepernick and Reid “will need to make sure to inquire about all the communications and anything that might bear upon an effort by a combination of people” to “[prevent Kaepernick and Reid from working]. … But the bottom line is going to be that unless they can show there was an actual combination of efforts, it’s going to be really hard to make their case.”

Stanford’s Gould identified some lanes that any competent lawyer would pursue.

“I would imagine that [their attorneys] will introduce evidence about the fact that both Reid and Kaepernick had some interest from clubs, but that interest disappeared once no promise of the kind of behavior that they want was made,” said Gould, who served as chairman of the National Labor Relations Board from 1994-98. “That kind of evidence that [they’ll be] introducing would be this kind of contact with other clubs as well as players who are not as qualified or not more qualified who have no difficulty getting offers on the market.”

There are only two possible explanations for what has happened to Kaepernick and Reid, American University’s Carle said.

“One is that each team on its own said, ‘We don’t want troublemakers, this is bad for business and we’re not going to hire these guys,’ and they just each independently made that decision,” Carle said. “If that’s what’s going on, then they don’t have a case of collusion. The other explanation is that the teams actually got together and said, ‘Let’s blackball both of these players.’ And if that’s true, then the players win.”