Colin Kaepernick’s collusion grievance a ‘mistake': legal expert

Winning his collusion grievance against the NFL will be a near impossible task for Colin Kaepernick, according to one legal expert.

"I think filing the grievance is a mistake," Michael Elkins, an employment law attorney with Bryant Miller Olive, told the Daily News.

The exiled quarterback, who started the polarizing national anthem protests last year, filed a grievance against the NFL, claiming he is the victim of a group boycott by team owners punishing him for his political views. Under the collective bargaining agreement, teams are not permitted to conspire to block a single player from getting a contract.

Without hard evidence, such as an email or text message between at least two NFL owners or a team and the league, Kaepernick faces an almost impossible legal challenge here.

"Kaepernick has a really tough road to hoe to make this case out. Really tough," said Elkins, who has exclusively represented management throughout his career. "Unless he comes up with some smoking-gun email or text message, which isn't going to exist because these owners are smart people, it's going to be very tough."

He's got to prove that at least two teams "got together and agreed not to sign him because of his political viewpoint. He's going to need some direct evidence of that," Elkins said.

27 PHOTOS
Colin Kaepernick through his career
See Gallery
Colin Kaepernick through his career
LAS VEGAS - OCTOBER 02: Quarterback Colin Kaepernick #10 of the Nevada Reno Wolf Pack celebrates with fans after defeating the UNLV Rebels 44-26 at Sam Boyd Stadium October 2, 2010 in Las Vegas, Nevada. (Photo by Ethan Miller/Getty Images)
30 December 2008: Nevada Wolf Pack quarterback Colin Kaepernick (10) in the Roady's Humanitarian Bowl held at Bronco Stadium in Boise, ID. (Photo by Steve Conner/Icon SMI/Icon Sport Media via Getty Images)
SAN FRANCISCO, CA - CIRCA 2011: In this handout image provided by the NFL, Colin Kaepernick of the San Francisco 49ers poses for his NFL headshot circa 2011 in San Francisco, California. (Photo by NFL via Getty Images)
MOBILE, AL - JANUARY 29: Colin Kaepernick #10 #10 of the North Team scrambles out of the pocket while taking on the South Team during the fourth quarter of the Under Armour Senior Bowl on January 29, 2011 at Ladd-Pebbles Stadium in Mobile, Alabama. (Photo by Sean Gardner/Getty Images for Under Armour)
NEW ORLEANS, LA - AUGUST 12: Colin Kaepernick # 7 of the San Francisco 49ers defends as his team plays the New Orleans Saints during their pre season game at Louisiana Superdome on August 12, 2011 in New Orleans, Louisiana. (Photo by Sean Gardner/Getty Images)
SAN DIEGO, CA - SEPTEMBER 1: Quarterback Colin Kaepernick #7 of the San Francisco 49ers throws the ball from the pocket against the San Diego Chargers during their preseason NFL Game on September 1, 2011 at Qualcomm Stadium in San DIego, California. (Photo by Donald Miralle/Getty Images)
SAN FRANCISCO, CA - OCTOBER 18: Quarterback Colin Kaepernick #7 of the San Francisco 49ers throws before a game against the Seattle Seahawks on October 18, 2012 at Candlestick Park in San Francisco, California. The 49ers won 13-6. (Photo by Brian Bahr/Getty Images)
SAN FRANCISCO, CA - DECEMBER 09: Colin Kaepernick #7 of the San Francisco 49ers runs down the field in between plays during their game against the Miami Dolphins at Candlestick Park on December 9, 2012 in San Francisco, California. (Photo by Ezra Shaw/Getty Images)
SAN FRANCISCO, CA - JANUARY 12: Quarterback Colin Kaepernick #7 of the San Francisco 49ers celebrates after running in a touchdown in the first quarter against the Green Bay Packers during the NFC Divisional Playoff Game at Candlestick Park on January 12, 2013 in San Francisco, California. (Photo by Harry How/Getty Images)
ATLANTA, GA - JANUARY 20: Quarterback Colin Kaepernick #7 of the San Francisco 49ers hugs a teammate as they celebrate in the locker room after the 49ers defeat the Atlanta Falcons 28-24 in the NFC Championship game at the Georgia Dome on January 20, 2013 in Atlanta, Georgia. (Photo by Kevin C. Cox/Getty Images)
Quarterback Colin Kaepernick of the San Francisco 49ers answers questions on his tattoos during Super Bowl Media Day on Tuesday, January 29, 2013, in New Orleans, Louisiana.. (George Bridges/MCT via Getty Images)
NEW ORLEANS, LA - FEBRUARY 03: Colin Kaepernick #7 of the San Francisco 49ers warms up against the Baltimore Ravens during Super Bowl XLVII at the Mercedes-Benz Superdome on February 3, 2013 in New Orleans, Louisiana. (Photo by Christian Petersen/Getty Images)
SANTA MONICA, CA - FEBRUARY 09: Professional football player/presenter Colin Kaepernick attends the Third Annual Hall of Game Awards hosted by Cartoon Network at Barker Hangar on February 9, 2013 in Santa Monica, California. 23270_002_SK_0224.JPG (Photo by Stefanie Keenan/WireImage)
SAN FRANCISCO, CA - AUGUST 08: Colin Kaepernick #7 of the San Francisco 49ers runs onto the field for their preseason NFL game against the Denver Broncos at Candlestick Park on August 8, 2013 in San Francisco, California. (Photo by Ezra Shaw/Getty Images)
SAN FRANCISCO, CA - AUGUST 25: Colin Kaepernick #7 of the San Francisco 49ers scrambles away from the rush of Fred Evans #90 of the Minnesota Vikings in the first quarter at Candlestick Park on August 25, 2013 in San Francisco, California. (Photo by Thearon W. Henderson/Getty Images)
ST. LOUIS, MO - SEPTEMBER 26: Colin Kaepernick #7 of the San Francisco 49ers warms up before a game against the St. Louis Rams at the Edward Jones Dome on September 26, 2013 in St. Louis, Missouri. (Photo by Michael Thomas/Getty Images)
NASHVILLE, TN - OCTOBER 20: Colin Kaepernick #7 of the San Francisco 49ers runs the ball in the first half against the Tennessee Titans at LP Field on October 20, 2013 in Nashville, Tennessee. (Photo by Wesley Hitt/Getty Images)
NASHVILLE, TN - OCTOBER 20: Quarterback Colin Kaepernick #7 of the San Francisco 49ers reacts during a NFL game against the Tennessee Titans at LP Field on October 20, 2013 in Nashville, Tennessee. (Photo by Ronald C. Modra/Sports Imagery/ Getty Images)
SEATTLE, WA - JANUARY 19: Quarterback Colin Kaepernick #7 of the San Francisco 49ers walks off the field after losing to the Seattle Seahawks 23-17 during the 2014 NFC Championship at CenturyLink Field on January 19, 2014 in Seattle, Washington. (Photo by Christian Petersen/Getty Images)
SANTA CLARA, CA - NOVEMBER 02: Colin Kaepernick #7 of the San Francisco 49ers looks on from the sidelines against the St. Louis Rams during the third quarter at Levi's Stadium on November 2, 2014 in Santa Clara, California. (Photo by Thearon W. Henderson/Getty Images)
DENVER, CO - AUGUST 29: Quarterback Colin Kaepernick #7 of the San Francisco 49ers warms up prior to facing the Denver Broncos during preseason action at Sports Authority Field at Mile High on August 29, 2015 in Denver, Colorado. (Photo by Doug Pensinger/Getty Images)
20 September 2015: San Francisco 49ers Quarterback Colin Kaepernick (7) [16242] in action during a game between the San Francisco 49ers and the Pittsburgh Steelers at Heinz Field in Pittsburgh, PA. (Photo by Robin Alam/Icon Sportswire/Corbis via Getty Images)
SANTA CLARA, CA - OCTOBER 18: Quarterback Colin Kaepernick #7 of the San Francisco 49ers warms up prior to playing the Baltimore Ravens in their NFL game at Levi's Stadium on October 18, 2015 in Santa Clara, California. (Photo by Ezra Shaw/Getty Images)
MIAMI GARDENS, FL - NOVEMBER 27: Colin Kaepernick #7 of the San Francisco 49ers fires the team up on the field prior to the game against the Miami Dolphins at Hard Rock Stadium on November 27, 2016 in Miami Gardens, Florida. The Dolphins defeated the 49ers 31-24. (Photo by Michael Zagaris/San Francisco 49ers/Getty Images)
LOS ANGELES, CA - DECEMBER 24: Colin Kaepernick #7 of the San Francisco 49ers warms up before the game against the Los Angeles Rams at Los Angeles Memorial Coliseum on December 24, 2016 in Los Angeles, California. (Photo by Harry How/Getty Images)
SANTA CLARA, CA - JANUARY 1: Eric Reid #35, Colin Kaepernick #7 and Eli Harold #58 of the San Francisco 49ers kneel on the sideline, during the anthem, prior to the game against the Seattle Seahawks at Levi Stadium on January 1, 2017 in Santa Clara, California. The Seahawks defeated the 49ers 25-23. (Photo by Michael Zagaris/San Francisco 49ers/Getty Images)
HIDE CAPTION
SHOW CAPTION
of
SEE ALL
BACK TO SLIDE

It should be noted that if Kaepernick does win his argument, he would not win a job in the NFL. He would only be entitled to double financial damages, based on the contracts other QBs have signed this year.

Kaepernick is represented by criminal defense attorney Mark Geragos, who famously defended Chris Brown, Michael Jackson and Barry Bonds' trainer Greg Anderson, among others.

Geragos did not immediately return a call for comment.

In the grievance, Kaepernick's lawyers laid out 14 points of circumstantial evidence to make their case. There is no mention of any direct evidence of collusion. Relying on circumstantial evidence makes Kaepernick's case flimsy; simply arguing that he's better than Brandon Weeden or Geno Smith may be problematic.

"That's not going to work," Elkins said.

"If a single team comes out and says … 'we're not signing him because we don't like his political viewpoint,' that's totally OK because that's a single team and the teams can make contract decisions based on whatever reasons they want," Elkins said.

He'd have to prove at least two NFL teams or a team and the league agreed not to sign him, and that may be impossible.

"The circumstantial evidence of 'I'm better than these other guys' isn't going to fly," Elkins said. "The teams will just say they went with a different option, what was best for the football team. That's why I say absent direct evidence, he's in big trouble."

Kaepernick's lawyers also mentioned inflammatory comments made in the last few weeks by President Donald Trump and Vice President Mike Pence as "designed to retaliate against Mr. Kaepernick and other players that have joined in Kaepernick's peaceful protest" in the grievance.

"All that really does is add sex appeal to the grievance," Elkins said, pointing to the fact that Trump exists outside of the CBA and legally holds no sway in the NFL universe.

"It's a great PR move," he said. "It will certainly get a lot of attention, but at the end of the day, Trump, the Office of the President, the Executive Branch, Pence, none of them are parties to the collective bargaining agreement. That's a key fact.

"You can't have collusion with an outside party from the agreement. And, to take it a step further, Trump never mentioned Kaepernick specifically. Trump made some very broad-based, call them inflammatory comments if you want, that have a lot to do with the kneeling, but there's nothing about Kaepernick and likely they're never going to find any communication between the league and the teams and the Executive Branch to not sign him or other free agents."

15 PHOTOS
Fans react to NFL players protesting during national anthem
See Gallery
Fans react to NFL players protesting during national anthem
Oct 8, 2017; Houston, TX, USA; Houston Texans fan holds up signs before the game against the Kansas City Chiefs at NRG Stadium. Mandatory Credit: Kevin Jairaj-USA TODAY Sports
ATLANTA, GA - OCTOBER 01: A fan in the stands yells at players during the national anthem prior to the game between the Atlanta Falcons and the Buffalo Bills at Mercedes-Benz Stadium on October 1, 2017 in Atlanta, Georgia. (Photo by Kevin C. Cox/Getty Images)
CLEVELAND, OH - OCTOBER 01: A Cleveland Browns fan holds a sign in protest durning the nation anthem in the game between the Cleveland Browns and the Cincinnati Bengals at FirstEnergy Stadium on October 1, 2017 in Cleveland, Ohio. (Photo by Justin Aller /Getty Images)
HOUSTON, TX - OCTOBER 01: Fans making a statement about the recent national anthem protests during a football game at NRG Stadium on October 1, 2017 in Houston, Texas. (Photo by Bob Levey/Getty Images)
BALTIMORE, MD - OCTOBER 01: A detail view of a sign displayed by fans during a game between the Pittsburgh Steelers and Baltimore Ravens at M&T Bank Stadium on October 1, 2017 in Baltimore, Maryland. (Photo by Patrick McDermott/Getty Images)
HOUSTON, TX - OCTOBER 01: Fans making a statement about the recent national anthem protests during a football game at NRG Stadium on October 1, 2017 in Houston, Texas. (Photo by Bob Levey/Getty Images)
Los Angeles Charger fans make their way to the stadium past Donald Frazell from Los Angeles as he holds a sign near other protesters demonstrating in support of NFL players who "take a knee" before kickoff and during the National Anthem protesting police violence outside the StubHub Center where the Los Angeles Chargers are playing the Philadelphia Eagles in an NFL football game in Carson, California, U.S. October 1, 2017. REUTERS/Danny Moloshok
Oct 1, 2017; Denver, CO, USA; Denver Broncos fans show their support with t-shirts in reference to standing for the American national anthem during the fourth quarter of a game against the Oakland Raiders at Sports Authority Field at Mile High. Mandatory Credit: Ron Chenoy-USA TODAY Sports
Sep 24, 2017; Charlotte, NC, USA; Carolina Panthers fans hold up signs in the fourth quarter at Bank of America Stadium. Mandatory Credit: Bob Donnan-USA TODAY Sports
Sep 24, 2017; Indianapolis, IN, USA; Cleveland Browns fans during their game against the Indianapolis Colts at Lucas Oil Stadium. Mandatory Credit: Thomas J. Russo-USA TODAY Sports
Sep 24, 2017; Foxborough, MA, USA; A New England Patriots fan holds a sign as they take on the Houston Texans in the second half at Gillette Stadium. Mandatory Credit: David Butler II-USA TODAY Sports
GLENDALE, AZ - SEPTEMBER 25: Fans hold signs before the singing of the National Anthem before the NFL game between the Arizona Cardinals and the Dallas Cowboys at the University of Phoenix Stadium on September 25, 2017 in Glendale, Arizona. (Photo by Christian Petersen/Getty Images)
At the start of the game protestors take a knee in support of the movement started by NFL player Colin Kaepernick, outside Lincoln Financial Field, in South Philadelphia, PA, on September 24, 2017. Similar protest are staged around the nation after US President Donald Trump named Kaepernick a Son of A Bitch at a recent rally. (Photo by Bastiaan Slabbers/NurPhoto via Getty Images)
CINCINNATI, OH - OCTOBER 8: A fan of the Cincinnati Bengals holds up a sign showing his opposition to players kneeling during the national anthem during the game between the Cincinnati Bengals and the Buffalo Bills at Paul Brown Stadium on October 8, 2017 in Cincinnati, Ohio. (Photo by John Grieshop/Getty Images)
HIDE CAPTION
SHOW CAPTION
of
SEE ALL
BACK TO SLIDE

If he wins, Kaepernick stands to win millions of dollars. A win does not guarantee he'll ever play in the NFL again, and some believe filing the grievance in the first place may have been the final nail in that coffin, effectively ending his NFL career.

A discovery period will follow and it is not likely 32 NFL owners will have their phones and hard drives seized like in federal court. A neutral arbitrator will be appointed to hear the case. It won't take place in a courtroom. It will unfold in an office somewhere, and both sides will plead their case.

And right now, it does not appear that Kaepernick has much of one.

"The deck is really stacked against him, and I'm frankly surprised he filed it," Elkins said.

Read Full Story

Sign up for Breaking News by AOL to get the latest breaking news alerts and updates delivered straight to your inbox.

Subscribe to our other newsletters

Emails may offer personalized content or ads. Learn more. You may unsubscribe any time.