The Crimes Against Colin Kaepernick
Yesterday, sports writer Chuck Modiano, tweeted a reminder not to forget the crime against Colin Kaepernick — his blackballing. I co-sign the sentiment and wanted to point out that there are real questions about whether or not NFL owners, executives and others committed state and federal crimes — felonies — not colloquial ones.
When Kaepernick alleged that two or more NFL teams colluded to deny him employment he didn’t just spark a labor dispute governed by the NFL’s Collective Bargaining Agreement with its players. Collusion of the type Kaepernick alleged would likely violate state and federal antitrust laws. The Department of Justice (DOJ) handles criminal enforcement of federal antitrust laws and the Federal Trade Commission (FTC) handles civil cases. In 2016, the DOJ and FTC stated that the DOJ would criminally prosecute employers that agreed not to hire each other’s employees. Criminal sanctions aren’t often pursued in major antitrust cases, but the possibility remains. As long as Kaepernick is unsigned, the questions of whether NFL teams colluded and are still colluding against him are open, as is the question of whether antitrust laws are being violated. Kaepernick’s settlement with the league does not bind state or federal governments and wouldn’t stand in the way of an investigation, criminal prosecutions or civil sanctions.
Potential antitrust violations are particularly important for the four major sports leagues, because they have an exemption from federal antitrust laws that allows the teams in each league to negotiate their broadcast rights as a single, monopolistic entity. Losing the antitrust exemption would be a huge blow to the NFL, because broadcast rights are where all the real money is made. Every few years, the league’s bad behavior (blackouts, domestic violence, etc.) has Congress considering revoking the league’s exemption. If NFL teams did collude against Kaepernick and that can be proven, that will likely show they violated antitrust laws. It will be the hard evidence of disrespect for the laws under discussion that’s been missing from the debates about revoking the NFL’s antitrust exemption.
It’s possible Congress wouldn’t just cut the NFL out of the existing exemption. They could torpedo the whole statute and revoke the NBA and NHL’s exemptions too (MLB is also protected by a Supreme Court case from 1922). The previous hearings seem to indicate this is the likely route. On top of the potential criminal penalties for colluding to deny Kaepernick employment, the consequences for the NFL’s actions could turn American pro sports upside down.
There’s only a slim chance that Kaepernick remaining unsigned would lead to a federal antitrust investigation, however the NFL may have left the back door open. Do you remember that kerfuffle over Electronic Arts (EA) scrubbing Kaepernick’s name from songs on the Madden NFL 18 and 19 soundtracks? The situation with Kaepernick and Madden went much deeper than two songs being scrubbed. When I looked into it, I discovered that EA potentially used six different methods to suppress Kaepernick’s presence in three versions of the game (Madden 17–19).
The history of tight control the NFL exerts over Madden created suspicion that it interfered to suppress Kaepernick in the game. Of particular note, EA was on record saying Kaepernick’s protest would be included in the weekly updates to game commentary. That never happened. Most important for the antitrust portion of the discussion are the changes that were made regarding Kaepernick in the Ultimate Team mode of Madden. Ultimate Team is huge for EA and major decisions regarding it aren’t made lightly. (If you’re unfamiliar with how Madden Ultimate Team (MUT) works and how lucrative it is for EA, you should read the article I linked to above. The context is important, and I can’t provide it here without derailing the discussion.)
EA effectively banned players who won Golden Tickets (rare, highly-coveted, in-game rewards) from using them on Kaepernick after a player who’d won announced they planned on using their ticket to make a custom card of Kaepernick. In addition, Kaepernick’s MUT card in Madden 18 had shockingly low ratings. Whatever you think of Kaepernick or his play, he has a cannon for an arm, and that 62 throw power rating (out of 99) reeks to the far reaches of outer space.
Right now, the video game industry is in a battle with regulators globally over “loot crates” or “loot boxes.” These are highly lucrative in-game microtransactions using in-game currency that have elements of chance attached. The main question is whether or not this is gambling and should be regulated as such. MUT is a giant loot crate. Players buy packs of cards hoping to pull good ones to build their teams or trade. Those Golden Tickets where Kaepernick was banned? Only ten were made available to PlayStation players and ten to Xbox players. That’s 20 total for the entire MUT community. One of the concerns of international regulators is that no one knows if the games of chance in video games are being run fairly and transparently. What happened with Kaepernick in MUT may be the straightest line to a smoking gun that proves EA loads the dice some of the time.
The U.S. federal regulator that is looking into loot crates is the FTC — the same agency tasked with civil antitrust investigations. If the FTC picks up the rock of MUT microtransactions and starts asking questions about what happened with Kaepernick, what might crawl out re: the NFL’s role? What other questions might be raised? Loot crates are part of the video game business model now, and EA has a whole catalog and a share price to protect. EA’s partnership with the NFL is highly lucrative, but if the NFL did interfere, EA may have too many other interests at stake to fall on its sword for the league. Questions about the NFL’s interference could lead the FTC down a path that involves the antitrust division. As I said, the chances of an antitrust investigation and revocation of the NFL’s exemption are slim, but the odds aren’t zero per cent. Not when Congress keeps bringing it up.
The NFL may be willing to roll the dice on nothing coming of the potential antitrust issues. Are the NBA and NHL, though? Their exemptions could also end up on the block if this heads back to Congress. The NFL is gambling with billions of dollars of their money too. Kaepernick settling his grievance doesn’t make any of this moot. As long as he remains unsigned, these issues are going to linger, and, in these volatile times, the odds could shift, perhaps dramatically.
N.B. This is about more than the collusion. From the beginning there have been clear signs that there is communication about Kaepernick that the NFL cannot allow to see the light of day because it’s a mess. Never forget an NFL executive said Kaepernick was as hated in front offices as Ray Carruth. To refresh your recollection, Carruth hired a hitman to murder his pregnant girlfriend, Cherica Adams, and Carruth participated in the attack. Having as much ire for Kaepernick as Carruth is unhinged, and emotionally incontinent people talk loosely and recklessly. The non-disclosure agreements Kaepernick and Eric Reid signed when they settled their grievances don’t seal every opening. There are other ways for the mess to get out, become part of public records, and threaten the NFL’s antitrust exemption. Signing Kaepernick and making the collusion issue moot takes the risk off the board.
UPDATE
Rep. Hank Johnson has said of Kaepernick’s situation: “It’s possible that Congress can do something. Congress oversees the antitrust exemption… The NFL is doing quite well with that antitrust exemption. Maybe it’s time for us to take a fresh look at it.”
This piece was adapted from a Twitter thread.
