Kaepernick's Grievance

[Don2 (Don1 Revised)]

The word "implied" is in there.

Does tacit collusion have implied agreement?

If the NFL owners all decided to follow a rule that did not yet exist formally but to be declared in the future (the rule to reject kneeling by players and/or not hire such persons who would do that), would that constitute an implied agreement among the owners and the NFL and therefore satisfy the definition of tacit collusion?

Maybe not?

I don't know about you, but in work if I am instituting a major change to something I normally have some discussion or other communication with stakeholders.

The proposed rule on Oct 10th isn't something that just happened arbitrarily out of the blue and so therefore it means there were likely communications prior to the proposal between NFL, employees, agents, club owners, etc advocating restricting behaviors of players, the most well-known such player being Kaepernick. The logical inference of such pre-proposal communication between NFL, agents, employees, and/or owners would be that such person ought not be hired.

In a civil matter for arbitration, what gaps are remaining? Are there remaining logical gaps? Does evidence of communication about the change need to be presented? Or is the likely inference enough?

As mentioned previously, "implied contract" has specific legal meaning.

https://www.nolo.com/legal-encyclopedia/what-is-implied-contract.html

https://fcw.com/Articles/1998/11/15/What-are-implied-contracts.aspx?Page=1

The burden of proof is on you. Show the elements of an implied contract exist.

Your not answering my questions while writing "the burden of proof is on you," makes me think you thought my questions were rhetorical. Is that why you did not answer them?

 

[dismal]

As mentioned previously, "implied contract" has specific legal meaning.

https://www.nolo.com/legal-encyclopedia/what-is-implied-contract.html

https://fcw.com/Articles/1998/11/15/What-are-implied-contracts.aspx?Page=1

The burden of proof is on you. Show the elements of an implied contract exist.

Your not answering my questions while writing "the burden of proof is on you," makes me think you thought my questions were rhetorical. Is that why you did not answer them?

A) The burden of proof is on you
B) It can't be satisfied by asking questions, you need evidence. Not speculation.

You can go about speculating and twisting legal terms beyond what an arbitrator is likely to accept all you like, but without evidence of collusion this case is a loser.

 

[Don2 (Don1 Revised)]

I am not twisting anything. Both expressed and implied collusion are problems that are forbidden by the contract.

Here is Kaepernick's grievance statement on the matter:

Respondents have engaged in express or implied collusion by prohibiting Mr. Kaepernick from practicing with any team, prohibiting Mr. Kaepernick from trying out with any team, and prohibiting Mr. Kaepernick from being employed by any team despite his qualifications. Respondents have undertaken said collusive conduct in retaliation for Mr. Kaepernick’s invocation of his rights under the First Amendment and his leadership in bringing attention to racial inequality and social injustice. Said conduct has been manifest in NFL team owner communications with each other, with the Executive Branch of the United States government, on social media, and through efforts announced by NFL Commissioner Goodell on October 10, 2017 to nunc pro tunc enact rules and regulations, not previously on the books, to prohibit and preclude Mr. Kaepernick and other players from kneeling.

Emphasis added.

 

[dismal]

I am not twisting anything. Both expressed and implied collusion are problems that are forbidden by the contract.

Here is Kaepernick's grievance statement on the matter:

Respondents have engaged in express or implied collusion by prohibiting Mr. Kaepernick from practicing with any team, prohibiting Mr. Kaepernick from trying out with any team, and prohibiting Mr. Kaepernick from being employed by any team despite his qualifications. Respondents have undertaken said collusive conduct in retaliation for Mr. Kaepernick’s invocation of his rights under the First Amendment and his leadership in bringing attention to racial inequality and social injustice. Said conduct has been manifest in NFL team owner communications with each other, with the Executive Branch of the United States government, on social media, and through efforts announced by NFL Commissioner Goodell on October 10, 2017 to nunc pro tunc enact rules and regulations, not previously on the books, to prohibit and preclude Mr. Kaepernick and other players from kneeling.

Emphasis added.

I posted an article that explains the elements of an implied contract earlier.

Legally, the elements of an express contract are: (1) an offer by one party and an acceptance by the other, (2) consideration, in particular something of value contributed by each party and (3) a mutuality of intent— specifically, a meeting of the minds regarding the provisions of the agreement. An express contract may be written or oral. [See Restatement of the Law (Second) of Contracts, & Sect; 3, 4.]

By comparison, there are two kinds of implied contracts: contracts implied in fact and contracts implied at law. An implied-in-fact contract is one that must be inferred from the conduct of the parties. Often such contracts involve a course of dealing between the parties or a common trade usage. For example, a manufacturer may tell a supplier to send a number of units without asking the current price. In such circumstances, a contract to pay the current price for the items is implied, even though the parties have not entered into an express contract. The legal elements of an implied-in-fact contract are the same as an express contract: offer and acceptance, consideration and mutuality of intent. However, some of the terms must be deduced from the parties' actions. (See Restatement & Sect; 4, and Comments thereto.)

What evidence do you have that suggests there is an implied contract in this case?

 

[Don2 (Don1 Revised)]

I am not twisting anything. Both expressed and implied collusion are problems that are forbidden by the contract.

Here is Kaepernick's grievance statement on the matter:


Emphasis added.

I posted an article that explains the elements of an implied contract earlier.

Legally, the elements of an express contract are: (1) an offer by one party and an acceptance by the other, (2) consideration, in particular something of value contributed by each party and (3) a mutuality of intent— specifically, a meeting of the minds regarding the provisions of the agreement. An express contract may be written or oral. [See Restatement of the Law (Second) of Contracts, & Sect; 3, 4.]

By comparison, there are two kinds of implied contracts: contracts implied in fact and contracts implied at law. An implied-in-fact contract is one that must be inferred from the conduct of the parties. Often such contracts involve a course of dealing between the parties or a common trade usage. For example, a manufacturer may tell a supplier to send a number of units without asking the current price. In such circumstances, a contract to pay the current price for the items is implied, even though the parties have not entered into an express contract. The legal elements of an implied-in-fact contract are the same as an express contract: offer and acceptance, consideration and mutuality of intent. However, some of the terms must be deduced from the parties' actions. (See Restatement & Sect; 4, and Comments thereto.)

What evidence do you have that suggests there is an implied contract in this case?

The legal team will allegedly produce evidence of the following:

Said conduct has been manifest in NFL team owner communications with each other, with the Executive Branch of the United States government, on social media, and through efforts announced by NFL Commissioner Goodell on October 10, 2017 to nunc pro tunc enact rules and regulations, not previously on the books, to prohibit and preclude Mr. Kaepernick and other players from kneeling.

I have not been following this thing closely enough or long enough to go about documenting such evidence. For example, I have no idea what "NFL team owner communications with each other" are.

 

[dismal]

I posted an article that explains the elements of an implied contract earlier.

Legally, the elements of an express contract are: (1) an offer by one party and an acceptance by the other, (2) consideration, in particular something of value contributed by each party and (3) a mutuality of intent— specifically, a meeting of the minds regarding the provisions of the agreement. An express contract may be written or oral. [See Restatement of the Law (Second) of Contracts, & Sect; 3, 4.]

By comparison, there are two kinds of implied contracts: contracts implied in fact and contracts implied at law. An implied-in-fact contract is one that must be inferred from the conduct of the parties. Often such contracts involve a course of dealing between the parties or a common trade usage. For example, a manufacturer may tell a supplier to send a number of units without asking the current price. In such circumstances, a contract to pay the current price for the items is implied, even though the parties have not entered into an express contract. The legal elements of an implied-in-fact contract are the same as an express contract: offer and acceptance, consideration and mutuality of intent. However, some of the terms must be deduced from the parties' actions. (See Restatement & Sect; 4, and Comments thereto.)

What evidence do you have that suggests there is an implied contract in this case?

The legal team will allegedly produce evidence of the following:

Said conduct has been manifest in NFL team owner communications with each other, with the Executive Branch of the United States government, on social media, and through efforts announced by NFL Commissioner Goodell on October 10, 2017 to nunc pro tunc enact rules and regulations, not previously on the books, to prohibit and preclude Mr. Kaepernick and other players from kneeling.

I have not been following this thing closely enough or long enough to go about documenting such evidence. For example, I have no idea what "NFL team owner communications with each other" are.

You do understand there is a difference between asserting something and providing evidence of it though?

Also, the vast majority of that list is entirely irrelevant to whether teams and the NFL conspired not to hire Kaepernick. Communication with Trump is not teams conspiring period. Efforts announced to change rules is not conspiring to deny Kaepernick a roster spot. Communications teams had with each other may be, communications on social media could be. But we have no evidence at this time that it is.

 

[Horatio Parker]

What I'm reading says the arbitrator will determine evidentiary procedure. All pertinent communications as well as depositions could be required, with the possibility of adverse rulings in the case of refusal.

 

[Don2 (Don1 Revised)]

I posted an article that explains the elements of an implied contract earlier.

Legally, the elements of an express contract are: (1) an offer by one party and an acceptance by the other, (2) consideration, in particular something of value contributed by each party and (3) a mutuality of intent— specifically, a meeting of the minds regarding the provisions of the agreement. An express contract may be written or oral. [See Restatement of the Law (Second) of Contracts, & Sect; 3, 4.]

By comparison, there are two kinds of implied contracts: contracts implied in fact and contracts implied at law. An implied-in-fact contract is one that must be inferred from the conduct of the parties. Often such contracts involve a course of dealing between the parties or a common trade usage. For example, a manufacturer may tell a supplier to send a number of units without asking the current price. In such circumstances, a contract to pay the current price for the items is implied, even though the parties have not entered into an express contract. The legal elements of an implied-in-fact contract are the same as an express contract: offer and acceptance, consideration and mutuality of intent. However, some of the terms must be deduced from the parties' actions. (See Restatement & Sect; 4, and Comments thereto.)

What evidence do you have that suggests there is an implied contract in this case?

The legal team will allegedly produce evidence of the following:

Said conduct has been manifest in NFL team owner communications with each other, with the Executive Branch of the United States government, on social media, and through efforts announced by NFL Commissioner Goodell on October 10, 2017 to nunc pro tunc enact rules and regulations, not previously on the books, to prohibit and preclude Mr. Kaepernick and other players from kneeling.

I have not been following this thing closely enough or long enough to go about documenting such evidence. For example, I have no idea what "NFL team owner communications with each other" are.

You do understand there is a difference between asserting something and providing evidence of it though?

Also, the vast majority of that list is entirely irrelevant to whether teams and the NFL conspired not to hire Kaepernick. Communication with Trump is not teams conspiring period. Efforts announced to change rules is not conspiring to deny Kaepernick a roster spot. Communications teams had with each other may be, communications on social media could be. But we have no evidence at this time that it is.

Yes, they could be. Is circumstantial evidence out of bounds in a civil suit?

For example, the below may not prove anything, but as circumstantial evidence it could provide support to the idea of an agenda:

Commissioner Roger Goodell said Thursday that the National Football League is having "unprecedented conversations" after owners and players met amid ongoing protests during the national anthem.

"We just had two days of conversation with our owners. Our clubs all see this the same way. We all want our players to stand," Goodell said at a news conference, adding that he understood why some people were upset that some players weren't standing for the anthem.

But he said the league wouldn't force players to stand during the national anthem — instead, he said, the league and the owners continue to listen to the athletes and discuss the issues they are concerned about.

"We have about a half a dozen players protesting, and we're going to continue to work to try and get that to zero," he said.

https://www.nbcnews.com/news/us-new...edented-talks-nfl-players-owners-meet-n811981

 

[dismal]

Yes, they could be. Is circumstantial evidence out of bounds in a civil suit?

If you have any evidence of any kind feel free to present it along with an argument of how it proves a conspiracy.

The only catch is you are not allowed to argue there must be a conspiracy because no one signed Kaepernick and he's super good.

Commissioner Roger Goodell said Thursday that the National Football League is having "unprecedented conversations" after owners and players met amid ongoing protests during the national anthem.

"We just had two days of conversation with our owners. Our clubs all see this the same way. We all want our players to stand," Goodell said at a news conference, adding that he understood why some people were upset that some players weren't standing for the anthem.

But he said the league wouldn't force players to stand during the national anthem — instead, he said, the league and the owners continue to listen to the athletes and discuss the issues they are concerned about.

"We have about a half a dozen players protesting, and we're going to continue to work to try and get that to zero," he said.

https://www.nbcnews.com/news/us-new...edented-talks-nfl-players-owners-meet-n811981

In what way does this prove there is an agreement between teams to deny Kaepernick a job? It seems like a complete non sequitur to me.

 

[Don2 (Don1 Revised)]

analysis from MAR. 29, 2017, fivethirtyeight.com ends in conclusion:

It is impossible to prove the precise mix of factors that have gone into Kaepernick’s free agency to this point. The market remains paralyzed by Romo, and teams are run by fallible owners and executives who may simply disagree on Kaepernick’s football value. But given what we know about how the quarterback market has worked historically, and about Kaepernick’s value as a player, the commentariat is right to be suspicious. If Kaepernick begins the season without a team, history says it’s unlikely to be for football reasons. We aren’t there yet, but every day further into free agency makes that scenario harder to ignore.

https://fivethirtyeight.com/features/yes-its-strange-that-colin-kaepernick-doesnt-have-a-deal-yet/

See link for full analysis.

 

[Don2 (Don1 Revised)]

espn.com Oct 1st, writing about the latest monthly meeting of NFL owners and NFL who apparently have some kind of regular meeting:

Going forward, however, some owners preferred a league-wide directive. Dan Snyder, the Washington Redskins' owner and who declined to comment through a spokesman, argued that the protests needed to end because of the danger that the issue posed to the league's bottom line. A "$40 million" NFL sponsor was considering pulling out, he told his fellow owners. Snyder kept repeating "$40 million" to add emphasis, amusing a clique of owners who did the math and realized that, after the players' cut of the shared revenue, it amounted to considerably less than $1 million per club -- hardly a game-changing sum for a league that last year had an average per-team profit of $101 million.

In the meeting, many owners wanted to speak, but the discussion soon was "hijacked," in the words of one owner, by Jones, a $1 million contributor to Trump's inaugural committee fund and who declined comment through a spokesman. The blunt Hall of Famer mentioned that he had spoken by phone, more than once over the past 24 hours, with Trump. Jones said the president, who only a few years ago tried to buy the Buffalo Bills, had no intention of backing down from his criticism of the NFL and its players.

http://www.espn.com/espn/otl/story/...ened-players-took-control-nfl-national-anthem

Advocacy of collective action by one owner to other owners to follow Trump in his anti-protest positions...

 

[dismal]

analysis from MAR. 29, 2017, fivethirtyeight.com ends in conclusion:

It is impossible to prove the precise mix of factors that have gone into Kaepernick’s free agency to this point. The market remains paralyzed by Romo, and teams are run by fallible owners and executives who may simply disagree on Kaepernick’s football value. But given what we know about how the quarterback market has worked historically, and about Kaepernick’s value as a player, the commentariat is right to be suspicious. If Kaepernick begins the season without a team, history says it’s unlikely to be for football reasons. We aren’t there yet, but every day further into free agency makes that scenario harder to ignore.

https://fivethirtyeight.com/features/yes-its-strange-that-colin-kaepernick-doesnt-have-a-deal-yet/

See link for full analysis.

Do you know what "collusion" means? Even if it were the case they were not hiring Kaepernick for non-football reasons is not "collusion".

 

[dismal]

espn.com Oct 1st, writing about the latest monthly meeting of NFL owners and NFL who apparently have some kind of regular meeting:

Going forward, however, some owners preferred a league-wide directive. Dan Snyder, the Washington Redskins' owner and who declined to comment through a spokesman, argued that the protests needed to end because of the danger that the issue posed to the league's bottom line. A "$40 million" NFL sponsor was considering pulling out, he told his fellow owners. Snyder kept repeating "$40 million" to add emphasis, amusing a clique of owners who did the math and realized that, after the players' cut of the shared revenue, it amounted to considerably less than $1 million per club -- hardly a game-changing sum for a league that last year had an average per-team profit of $101 million.

In the meeting, many owners wanted to speak, but the discussion soon was "hijacked," in the words of one owner, by Jones, a $1 million contributor to Trump's inaugural committee fund and who declined comment through a spokesman. The blunt Hall of Famer mentioned that he had spoken by phone, more than once over the past 24 hours, with Trump. Jones said the president, who only a few years ago tried to buy the Buffalo Bills, had no intention of backing down from his criticism of the NFL and its players.

http://www.espn.com/espn/otl/story/...ened-players-took-control-nfl-national-anthem

Advocacy of collective action by one owner to other owners to follow Trump in his anti-protest positions...

In the future can you try to link these vignettes to some plausible rationale they are proof that owners colluded with each other not to hire Kaepernick?

I generally can't imagine what you think these stories have to do with that which is to be demonstrated.

 

[Don2 (Don1 Revised)]

I generally can't imagine what you think these stories have to do with that which is to be demonstrated.

That's either disingenuous or close-minded since they are relevant to background facts and claims in the grievance.

 

[dismal]

I generally can't imagine what you think these stories have to do with that which is to be demonstrated.

That's either disingenuous or close-minded since they are relevant to background facts and claims in the grievance.

Do you understand what collusion means?

 

[Don2 (Don1 Revised)]

That's either disingenuous or close-minded since they are relevant to background facts and claims in the grievance.

Do you understand what collusion means?

From the op:

What merit does it have? Personally, I think it has some merit in that it identifies behaviors of the owners/NFL.

What gaps does it have? Personally, it isn't clear to me that it adequately demonstrates owners cooperating with each other toward the goal of not hiring Kaepernick.

What things are yet to be determined? Lawyers might request some documents even if they cannot subpoena anything. What such documents may say are to be determined. Anything else?

Emphasis added.

 

[dismal]

Do you understand what collusion means?

From the op:

What merit does it have? Personally, I think it has some merit in that it identifies behaviors of the owners/NFL.

What gaps does it have? Personally, it isn't clear to me that it adequately demonstrates owners cooperating with each other toward the goal of not hiring Kaepernick.

What things are yet to be determined? Lawyers might request some documents even if they cannot subpoena anything. What such documents may say are to be determined. Anything else?

Emphasis added.

isn't clear it adequately?

Is there any evidence of the owners cooperating with each other toward the goal of not hiring Kaepernick?

 

[Don2 (Don1 Revised)]

From the op:

What merit does it have? Personally, I think it has some merit in that it identifies behaviors of the owners/NFL.

What gaps does it have? Personally, it isn't clear to me that it adequately demonstrates owners cooperating with each other toward the goal of not hiring Kaepernick.

What things are yet to be determined? Lawyers might request some documents even if they cannot subpoena anything. What such documents may say are to be determined. Anything else?

Emphasis added.

isn't clear it adequately?

Is there any evidence of the owners cooperating with each other toward the goal of not hiring Kaepernick?

There is evidence that supports the claim of this being a statistical anomaly. Question now is what are the likely reason(s) for this, one such reason being extra-contractual reasons for excluding hiring of Kaepernick, like politics, and whether or not there was cooperation among more than one owner and NFL or its personnel.

You seem to be forgetting this is a clear preponderance of evidence burden*, not a logical proof where one goes about proving A ==> B ==> C.

So IF there are no other plausible reasons for such exclusion and ANY evidence at all is presented that even goes in the direction slightly of collusion that may satisfy the burden and it is up to the arbitrator to make the call.

Things in life are complicated and as such they often come in degrees and so let's break this down into what does collusion even mean, even implied collusion to determine what elements are in an ideal proof versus a preponderance of evidence proof.

In an ideal proof you would have something like this:
Owner#1: "Hey I don't want to hire Kaepernick because of politics. Will you join me in blacklisting him?"
Owner#2: "Yeah, let's get him back."
Then Owner#1 never takes such statement back and directs general manager to never hire Kaepernick or even let Kaepernick practice with team.
Also, the same for Owner#2.

What we currently have is a jigsaw puzzle with missing pieces because this is preponderance of evidence, not an absolute proof:
Owner#1: "Hey guys, we need to follow Trump because we'll lose money if we don't because his politics will not stop--he's making us lose fans."
Owner#2->Owner#N: no dissenting opinions expressed
Owners continue to not hire Kaepernick.
There are directives (communications) from owners to managers not to even let Kaepernick practice with teams.

...and we have to see what other jigsaw pieces come out such as communications that have more of a tendency to complete or refute an emerging alleged picture.

*

Gene Orza, the lawyer who defeated Major League Baseball to the tune of $280 million in an epochal 1980s collusion case, told CNNMoney that a “smoking gun was not the basis of that [MLB] decision. Instead it was simply the inference of collusion, that all of [a] sudden not one player who was a free agent was getting an offer.” The NFL uses a “clear preponderance of evidence” standard in its arbitration, though, and MLB did not at that time.

http://www.slate.com/articles/sport...nfl_collusion_grievance_because_of_trump.html

 

[Horatio Parker]

From the op:

What merit does it have? Personally, I think it has some merit in that it identifies behaviors of the owners/NFL.

What gaps does it have? Personally, it isn't clear to me that it adequately demonstrates owners cooperating with each other toward the goal of not hiring Kaepernick.

What things are yet to be determined? Lawyers might request some documents even if they cannot subpoena anything. What such documents may say are to be determined. Anything else?

Emphasis added.

isn't clear it adequately?

Is there any evidence of the owners cooperating with each other toward the goal of not hiring Kaepernick?

What Ive read is that league officials have stated that there are teams willing to sign Kaepernick, but that they are afraid of retaliation. That, plus Trump's threats, are suggestions that collusion is a possibility. One of the purposes of the hearing is to establish if such evidence exists.

 

[Derec]

What Ive read is that league officials have stated that there are teams willing to sign Kaepernick, but that they are afraid of retaliation.

Retaliation by other owners, Godell, or their fans/customers? Because the latter would not point to any collusion. Team owners are well advised to take the feelings of their fans into account, because without fans there is no NFL.