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Colin Kaepernick goes from the accidental activist to the perfect plaintiff

Suspecting collusion is one thing, proving it is quite another

A little over a year ago when asked by Steve Wyche about his decision to sit during the national anthem during a San Francisco 49ers preseason game, Colin Kaepernick responded, “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color.” These and subsequent comments have set the sports world on fire and have thrust Kap into his role as the Accidental Activist.

This and the firestorm of media attention that has surrounded Kaepernick and the NFL over the past year have made it nearly impossible for a consistent narrative to emerge about the underlying issue of why Kap decided to silently sit out the anthem in the first place: police brutality and oppression.

President Donald Trump recently hijacked the discussion by creating a narrative that serves his agenda of distraction by division. Trump created a false binary choice around NFL players’ decision to protest by kneeling during the anthem. You either stand or you’re not a patriot. You either stand or you are disrespecting the flag, the country and the military.

Kaepernick has taken Trump’s narrative along with some comments he made during an event in Kentucky in March — “NFL owners don’t want to pick him up because they don’t want to get a nasty tweet from Donald Trump.” — as the basis for a lawsuit against the NFL for collusion.

This lawsuit allows us to separate the issue of Kap’s employment from the issue of police and brutality and oppression that is at the heart of the players’ protest.

Kap is the perfect plaintiff for this case, even though he has an uphill battle in proving the claim, because of his ubiquity.

All owners, general managers and coaches in the league are well within their legal rights to pass on Kap if they believe that the downside due to the distractions associated with having him on the roster outweigh any benefits that his talent would bring to his team and teammates. It’s even cool if each and every one of them came to this conclusion completely on their own.

The problem is if any two people from two different teams or the league office had a discussion about the pros and cons of Kap and collectively came to a decision to pass.

The Undefeated’s senior NFL writer Jason Reid quoted American University Washington College of Law professor Susan D. Carle saying:

“[Kaepernick] would have to show that each of the teams, that they didn’t just on their own decide not to sign him but that at least two of them somehow had a communication and said, ‘We’re not going to pick him because he’s trouble. Let’s just kind of blackball him.’ He would have to have some evidence to show that.

“It doesn’t have to be a written memo. It could be an oral communication that somebody’s willing to testify about. If he had an ally on one of the teams who could say, ‘Yeah, I heard these [officials from two teams] say we’re going to stay away from him.’ That could be enough.”

The rules of engagement, as outlined by Carle, frame the claim in a way that we can now begin to discuss it without the emotions that often accompany it.

The issue around Kap’s case is not an individual team deciding that he’s bad for business or 32 teams independently coming to that conclusion on their own. It’s about whether or not two or more came to that conclusion collectively.

This is where the ubiquity of Kap works to his advantage. It would be difficult to believe that among the 32 owners, general managers, coaches and officials in the league office, including the commissioner himself, that at least one conversation didn’t take place regarding the distraction and business liability that Kap would bring to a franchise. If at least one of those conversations did indeed take place and it rose to the level of “I’m not going to touch him, and you shouldn’t either because he’s bad for business,” then that would definitely end up being REALLY bad for business.

Suspecting collusion is one thing, proving it is quite another. At least we now have a way of framing this issue in a way that can eventually bring it to a conclusion. Only time will tell.

Andre Kimo Stone Guess is a writer and cultural critic from the Smoketown neighborhood in Louisville, Kentucky. He was VP and Producer for Jazz at Lincoln Center in New York and CEO of the August Wilson Center for African American Culture in Pittsburgh. He now runs GuessWorks, Inc. with his wife Cheryl.