What Eric Reid’s unemployment could mean for Colin Kaepernick’s collusion case

As Colin Kaepernick’s legal battle with the NFL progresses and teams continue to shun the quarterback, his case may be strengthened by safety Eric Reid’s failure to land another job in the league, several experts in labor law said.

While they were San Francisco 49ers teammates in 2016, Reid was the first player to kneel alongside Kaepernick during the national anthem to shine a light on racial injustice in the United States. Although Reid is widely considered by NFL player-personnel officials to be among the top free agents at his position, he remains unsigned more than a month after clubs were permitted to sign free agents.

Kaepernick hasn’t worked since opting out of his contract after the 2016 season. Many civil rights activists and NFL players have blasted the league, claiming Kaepernick is being shut out because of his political views. In October 2017, Kaepernick filed a grievance under the NFL’s collective bargaining agreement, alleging that owners have conspired to keep him out of the league. Kaepernick’s legal team is collecting evidence, including depositions from high-ranking league executives and owners.

The fact that Reid, the player most closely aligned with Kaepernick, also hasn’t joined another team could be problematic for the NFL, said Thomas A. Lenz, a lecturer at the University of Southern California Gould School of Law.

“To the extent that someone else has some parallel activity, some similar involvement, it certainly cast suspicion” on what’s occurring in the NFL, said Lenz, an expert in complex labor and employment matters. “It’s the sort of thing that, as the facts bear out, you have to wonder if there’s some sort of pattern going on. … It definitely warrants some inquiry.”

Kaepernick, 30, repeatedly has been passed over for jobs that have been filled by far less accomplished passers. Privately, some NFL coaches acknowledge Kaepernick is better than many signal-callers who currently occupy spots on team rosters.

Reid, 26, has played five seasons. Even scouts critical of Reid’s performance acknowledge he’s a starting-caliber defensive back. Yet, just like Kaepernick, Reid is still out of work.

Reportedly, the Cincinnati Bengals backed away from making Reid an offer last week because he essentially declined to commit to standing during “The Star-Spangled Banner.” Although Reid had recently said he did not plan to demonstrate next season, he apparently chafed at the Bengals’ demands.

Meanwhile, ESPN’s Adam Schefter reported that the Seattle Seahawks postponed bringing Kaepernick in for a visit last week after he also declined to say he would stop kneeling next season. Attempts to contact Kaepernick’s attorney, Mark Geragos, were unsuccessful.
Susan D. Carle, a professor of law at American University Washington College of Law, is intrigued by Reid’s current position, as it could potentially impact Kaepernick’s case.

If someone is sort of in the range of a player who may or may not get a job based on a variety of factors — skill, versatility, age, etc. — then those situations “wouldn’t be very probative” for Kaepernick’s grievance, said Carle, an expert in discrimination, labor and employment law. “But if the player is having trouble getting a job, and if that just doesn’t make sense because of his skill level, it could be supportive evidence.”

Observing what has occurred with Kaepernick and Reid, it’s impossible to ignore the similarities, said Stanford Law School professor William B. Gould IV. An expert in labor and discrimination law, Gould argues that Reid’s unemployment “might augment Kaepernick’s case.”

“The fact that [Reid] seems to be somebody who has capability … you would think he would be attractive to any number of teams,” said Gould, who served as chairman of the National Labor Relations Board from 1994-98. “And the fact that the offers have not been forthcoming helps Kaepernick in suggesting that he’s being blackballed for his views.”

Even with Reid on the outside looking in, Kaepernick faces a high bar to prove his case, the legal experts acknowledged.

Former Miami Dolphins safety Michael Thomas, a cohort of Kaepernick and Reid in the protest movement, signed with the New York Giants in free agency. Bolstering their efforts in an attempt to defend their title, the Super Bowl champion Philadelphia Eagles traded for outspoken defensive lineman Michael Bennett, who’s among the most socially conscious players in the league.

Also, the NFL, which is almost 70 percent black, recently ratified the budget for its landmark social justice initiative with players. Owners have committed $89 million over seven years to bankroll causes considered important to African-American communities.

“There are definite difficulties anytime you are looking at collusion or conspiracy,” said Lenz, the USC professor. “But if you start seeing people treated in adverse, unfavorable ways, there are definitely questions to be answered. Why is this happening? Is there something about Mr. Reid that makes him somehow unfit to play? What’s going on?”

Reid’s situation doesn’t amount to “smoking-gun evidence,” but Kaepernick may not need a smoking gun to prevail, Stanford’s Gould said.

“I don’t think the threshold is a smoking gun. Even in [Major League Baseball], in the anti-collusion cases in the late ’80s, they didn’t have a smoking gun,” Gould said. “They had a lot of statements. They had a lot of things that happened, in conjunction with one another, that convinced the arbitrator that the inference of barring of free agents who wanted to change teams was a reasonable one.

“Similarly, I don’t think Kaepernick has to find a smoking gun. I think he has to be able to show inferences and circumstantial evidence, which would indicate that he’s being penalized for his free expression. And again, I think the fact that Reid doesn’t have any offers is going to be helpful. I think it could be quite helpful to him.”