The NFL’s Handling of the Kaepernick Situation Could Blow up American Sports
By: Kitanya Harrison
Tags: Politics, Law, Colin Kaepernick, Sports, NFL

The people running the NFL aren’t any smarter than you or me. They’ve managed to maneuver themselves next to a machine that prints money. That’s it. The machine is what matters. It’s the goose that lays golden eggs. With its maladroit handling of the Colin Kaepernick situation, the NFL may have killed its prized possession.

The moment Kaepernick said the word “collusion,” I thought to myself, they need to give that man a contract, and they need to do it now. Here’s why: When collusion became an issue, federal antitrust laws were invoked.

The federal antitrust laws are designed to protect competition, and while the core tenets are relatively simply stated, boy do they pack a wallop. When major corporations like Ma Bell are broken up for being anticompetitive, the antitrust laws form the hammer regulators use to do the smashing.

That machine I mentioned — the one that’s printing cash for the NFL — runs on the sale of broadcast rights.

In 1961, Congress passed the Sports Broadcasting Act, which granted antitrust exemptions to the four major American sports leagues: baseball, football, basketball, and hockey. The exemptions allow the teams in each league to negotiate the sale of their broadcast rights as a group. Functionally, each sports league is acting as a monopoly — a legal monopoly. These antitrust exemptions are massive handouts. They form the bedrock of the leagues’ profitability.

A finding that the NFL colluded against Kaepernick will be solid evidence that the league’s behavior was anticompetitive. It would trigger an investigation into whether or not the NFL violated the antitrust laws, and whether any of these violations were criminal. The scary word “felony” would crop up, and the catastrophe of Congress revoking the league’s antitrust exemption would be firmly on the table. To be clear: Yes, part of what we’re discussing is the possibility that people high up in the NFL committed federal crimes — felonies.

Everyone who thinks Kaepernick is being belligerent with his grievance proceeding needs to realize that he’s actually being quite circumspect. If I were in his shoes, I’d be running through Capitol Hill with a vuvuzela and a tambourine screaming about the Sherman Act at the top of my lungs and trying to burn the NFL to the ground. But I’m petty.

When Kaepernick said “collusion” and the NFL replied “bet,” the league wasn’t calling the bluff of a disgruntled player, it was shoving all its chips into the pot. The NFL is all in on this, and I’m not sure they realize it.

From the beginning of this saga, it has been clear that a kind of hysteria has gripped the league’s owners and management, and it’s preventing them from thinking things all the way through. Their lawyers probably advised them that athletes who’ve brought collusion cases against any of the major sports leagues haven’t had much success, but those were pretty mundane disputes that not many people cared about. Kaepernick’s case has garnered international attention. This all looks bad in a way the other cases didn’t.

In addition, there are major social issues — racialized, violent policing and the freedom to protest peacefully — at the heart of Kaepernick’s battle with the NFL. This gives politicians running for office something to grandstand about. There is going to be a brawl for the 2020 Presidential nominations. Donald Trump has blown the field wide open. Everyone who’s ever thought about it is going to run. The maneuvers have already begun. The most powerful tool sitting senators have to raise their profiles is televised hearings.

The Senate has held hearings about revoking the NFL’s antitrust exemption in the recent past, but the spotlights would be much brighter this time around. I don’t think high-profile female senators will pass up the chance to punch NFL owners in the gonads on national TV over the league’s appalling misogyny. The ravages of CTE would also probably be discussed in excruciating detail. Every PR nightmare the NFL wants to sweep under the rug would be put under a microscope.

In addition, Kaepernick’s protest is a unique flashpoint. Those who support him and those who vilify him are unhappy with the way the league has handled matters. America is a divided nation, except it seems on one point: that the NFL is trash. If revoking the NFL’s antitrust exemption gets put to a vote, the numbers might be there to get it passed. Congress might leap at the chance to make it look like they’re getting something done on the people’s time.

Here’s another wrinkle: Is it possible to discuss revoking the NFL’s antitrust exemption without shining those uncomfortably bright floodlights onto the other major sports leagues? Could Congress go farther than just cutting the NFL out of the Sports Broadcasting Act? Could they repeal the whole thing?

In 2014, Senator Richard Blumenthal (D-CT) introduced a bill that would have required all major sports leagues to renew their antitrust exemptions every five years. The hearings that sparked the bill were triggered by the NFL’s domestic violence scandals, but the bill took aim at the general principle of the sports leagues’ antitrust exemptions and sought to put an end to the “blank check” the leagues had been given. It stands to reason that any action Congress might take against the NFL would likely extend to the other leagues. If the Sports Broadcasting Act is repealed, there is an old Supreme Court case from the 1920s that will probably save baseball’s bacon, but the NFL, NBA and NHL would be severely damaged, perhaps irreparably.

The connection between domestic violence and the NFL’s antitrust exemption is tenuous. Colluding in a manner that violates the antitrust laws is as firm as that connection can get. A convincing argument can be made that, given all the other malfeasance Congress is concerned happens in the NFL, if on top of all that, the league outright flouted the antitrust laws, punishing it by revoking its antitrust exemption is fair. The history of Congress’ approach makes it likely the other sports leagues won’t be spared — the whole concept of the exemption will probably be scuttled.

A finding that the NFL colluded against Kaepernick will light a fuse that could lead to a cataclysmic explosion in American sports. Preventing that from happening is in the interest of everyone who eats off of a major sports franchise. Ironically, Kaepernick’s most powerful allies might come to be billionaire owners from the other leagues. At some point, they may have to sit their peers in the NFL down and ask them quite pointedly exactly what the hell they think they’re doing. NFL owners might even switch sides on this. To protect themselves, they may have to protect Kaepernick.

This all would have seemed farfetched a few years ago, but we are living in the upside down. Every day it seems something else we thought was unthinkable has come to pass. The mighty NFL is incredibly vulnerable in ways I don’t think it has considered fully. It has made the other major sports leagues vulnerable too.