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Kapp Redux: Revisiting Joe Kapp v. NFL in Light of the Kaepernick Case

October 23, 2017
by Glen Martin

Former San Francisco 49ers quarterback Colin Kaepernick’s lawsuit against NFL owners for colluding to keep him out of football because he launched the “take-a-knee” protests against racial injustice evokes an earlier landmark sports case, one involving another player whose surname shares a phonetically identical initial syllable with Kaepernick’s.

Way back in 1971, Boston Patriots, and former Cal, quarterback, Joe Kapp was directed to sign a standard player’s contract following his first season with the Pats. John Elliot Cook, Kapp’s attorney, advised his client to refrain from putting his signature on the dotted line, observing Kapp already had a legal and binding contract, one that Cook had negotiated. When Kapp followed Cook’s advice, he was booted from training camp, effectively expelling him from the League. Kapp, known as a particularly aggressive player, didn’t take the sacking meekly. He sued the NFL and its 26 teams for violating antitrust law.

Against odds that seemed insurmountable at the time, Kapp won. Ruling in the U.S. Court for the Northern District of California, Judge William Sweigert declared that the means used by team owners to control a player’s career—the college draft, the Rozelle Rule, the option clause—were “patently unreasonable and illegal.”

Kapp sued under U.S. antitrust law. Kaepernick’s claim that NFL owners colluded to blackball him relates to U.S. labor law. That difference is crucial.

Kapp lost out, however, in a subsequent trial to determine and award damages. Plaintiffs typically are entitled to triple damages in most antitrust cases. Despite the fact that Kapp had $450,000 remaining in his contract with the Patriots, an unsympathetic jury—possibly influenced by news stories and editorials about “greedy pro athletes” circulating at the time—stiffed him, refusing to award a single dollar. Kapp also lost subsequent appeals.

But if the proud and rebellious quarterback ultimately lost out, the entire class of pro football players won. Kapp v National Football League became a major precedent in antitrust case law, and is a primary reason why players enjoy free agency today.

“[Kapp v NFL] is an important case in antitrust sports law,” says Prasad Krishnamurthy, a professor at UC Berkeley Law.  “Though it was a ruling by the Northern District Court of California—not an appellate or Supreme Court ruling—it established legal precedent and had a spillover effect for all teams in the League.”

So could Kaepernick’s case against the League have similar repercussions?  Perhaps, but it’s unlikely. Kapp sued under U.S. antitrust law. Kaepernick’s claim that NFL owners colluded to blackball him relates to U.S. labor law. That’s a crucial difference, Krishnamurthy says, and one that makes the outcome of Kaepernick’s case unlikely to resonate through the NFL as a whole.

Under antitrust laws, companies must compete for the labor of workers; they can’t agree to fix wages. But workers—in this case, players—enjoy a major exemption from antitrust statutes in that labor law allows them to form unions and secure wage scales and benefit schedules through collective bargaining.

“The collective bargaining agreement governing football spells out what players and owners can and can’t do,” says Krishnamurthy, “and one thing owners can’t do is collude to prevent a player from joining a team and playing.”

“To prove collusion, you have to prove that there was actual agreement among the owners not to hire him. It can’t be one guy simply saying, ‘I don’t think we’re going to hire him.’”

That sounds pretty promising for Kaepernick, right? Not necessarily. Proving collusion is not as easy as, say, proving somebody slipped on a wet floor at Wal-Mart. Kaepernick has to show that the owners all got together and decided they weren’t going hire him, as opposed to each owner determining that course of action on his or her own, Krishnamurthy says.

“So it becomes a matter of evidence,” Krishnamurthy says.  “To prove collusion, you have to prove that there was actual agreement among the owners not to hire him. It can’t be one guy simply saying, ‘I don’t think we’re going to hire him,’ and another guy saying, ‘Nope, me neither.’ That’s just communicating a judgment.  It has to be more active and organized than that—more along the lines of, ‘We’re not going to hire him and you guys better not either,’ and everyone else agreeing to that.”

And proving such a conspiracy could be very tough.

“Normally in collusion cases, the evidence is in the hands of the defendants,” says Krishnamurthy. “They’re the ones, after all, who know if they exchanged emails or had phone calls or got together in a VIP box to talk over strategy. What Kaepernick has to do is show enough circumstantial evidence—such as the owners of the Broncos and the Dolphins getting together in the same box a couple of days before they announced they wouldn’t hire Kaepernick, or something similar—and present it to a federal court. Then they could get discovery [the pre-trial process by which both plaintiffs and defendants can obtain evidence from each other], and demand to see emails and phone records.”

Without such firm evidence, says Krishnamurthy, Kaepernick’s case looks weak.

“With the information that’s public now, he can’t win,” says Krishnamurthy. “He needs a smoking gun, or he needs to subpoena someone under the penalty of perjury [who could provide compelling evidence].”

Even if Kaepernick did prevail, Krishnamurthy concludes, the lawsuit probably will affect only the plaintiff. It is unlikely to serve as a precedent in case law.  Unlike Kapp’s case, it is essentially a labor dispute confined to a single individual, not an antitrust case with consequences for an entire professional sports organization.

“When the court said the League was imposing a restriction of trade on Joe Kapp, it didn’t apply just to him. It applied to all other player contracts,” says Krishnamurthy. “If Kaepernick wins, he could get triple damages, which is similar to recompense under antitrust law, but his case wouldn’t apply to the League as a whole. Players with similar grievances would each have to file their own lawsuits. So, Kaepernick’s case doesn’t have the overarching significance of Kapp’s case.”

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