President Trump helped turn the NFL’s national anthem protests last year into a lightning-rod political issue, another wedge driven into a sharply divided electorate and, according to testimony given by some NFL owners as part of the process in a grievance filed by former quarterback Colin Kaepernick obtained by the Wall Street Journal, Trump loomed large over the NFL discussions over the anthem protests.
“This is a very winning, strong issue for me,” Trump told Dallas Cowboys owner Jerry Jones in a phone call, Jones said in a deposition. “Tell everybody, you can’t win this one. This one lifts me.”
Jones later relayed that conversation to a meeting of the owners as they debated how to handle the protests, Miami Dolphins owner Stephen Ross testified. Ross said he was “totally supportive” of the players until Trump weighed in.
“I thought he changed the dialogue,” Ross said. Ross also said he believed that NFL Commissioner Roger Goodell had been influenced by Trump’s comments, the Journal reported.
Trump’s long-standing criticism of the anthem protests has been well-publicized, but questions over how it may have influenced NFL owners has the potential to affect separate grievances filed by Kaepernick, another former 49ers player, Eric Reid, and the Players Association against the league, as well as legal issues in the future. Kaepernick’s grievance, which is being heard by an independent arbitrator per NFL rules, contends that league owners cooperated to keep him out of the league because of his role in the anthem protests and argues that Trump was an “organizing force in the collusion,” according to the Journal.
Mark Geragos, Kaepernick’s lawyer, seized on that in an interview Wednesday night on CNN, predicting that strong evidence of collusion — “orchestrated in some kind of kabuki theater” — would surface soon. “I would stay tuned,” he said, “because this case is about to take a dramatic turn.” Asked by Don Lemon for specifics, Geragos said only that “somebody has decided they were going to dime out the NFL for what they were doing.”
Experts have said that the grievance faces a high legal bar and it is not clear whether information from the depositions, which was coupled with statements made by Geragos, implying that at least one owner testified that his mind was changed about signing Kaepernick after Trump’s statements, does anything to significantly advance the former quarterback’s case.
“It’s not an insignificant piece of evidence, but the key to any collusion case is having evidence that the owners agreed not to sign Kaepernick because of his demonstrations during the anthem,” said Gabriel Feldman, director of the sports law program at Tulane University Law School. “There may be evidence that an owner decided not to sign Kaepernick because of his demonstrations, but it’s not evidence that there was any agreement between multiple owners not to sign him. Even if the president did convince some individual owners not to sign Kaepernick, the missing link is an agreement.”
Still, the surfacing of the depositions is a reminder of how the anthem protests and the potential as a political powder keg they represent, are unlikely to go away, despite a new policy from the league requiring players on the field to stand for the anthem.
“The optics of owners feeling pressured to make a political decision — I don’t think that’s where any owner or league wants to be,” Feldman said. “But these are interesting times.”
The protests had already been raging for a year when Trump ripped into players who protested and said he would love to see them get fired at a rally shortly after the season started last year.
“Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say ‘get that son of a bitch off the field right now, out, he’s fired,’ ” Trump said. And he continued over the coming months to lambaste the league, at one point calling for an unspecified change in “tax law” because of all the public tax breaks and incentives many NFL teams receive, because of the anthem protests.
Last week, the NFL announced new rules that seemed intended to help sideline the issue, requiring players to stand for the anthem or face team fines if on the field, but giving them the option to remain in the locker room. But the rules set off a torrent of criticism from those who believe that players should be allowed to express themselves or protest during the anthem as they see fit.
“We expect professional sports leagues to lead the way on social issues, which is a difficult thing for the sports league to do, when the fan base of most sports leagues is so diverse it likely won’t agree on anything, much less something like the anthem protests,” Feldman said.
Legal experts have said that professional football players, as private employees, likely don’t enjoy constitutional protections from their employers for protests at work. But some have noted that Trump’s tax statement represented a step toward potential government infringement upon players’ First Amendment rights. The specificity of state laws about political speech, as well as legal loopholes created because some stadiums are publicly owned or financed, could further add wrinkles to the picture.
But thus far, the debates about player protests have manifested as labor disputes. The Players Association has said that it is analyzing the new anthem policy to see if it violates any part of its collective bargaining agreement.
“For now, the Players Association has chosen to fight this as a labor issue, and not take it to the courts as a First Amendment issue, but it’s certainly possibly that a court could expand the definition of the First Amendment to include either persuasion by the president or be convinced by the fact that some of these players are playing in public stadiums,” Feldman said.
During an interview with Geragos on the podcast the Straight Aim this week, host Amy Dash noted the high burden of proof Geragos and Kaepernick faced, saying that “for collusion you would need to show that that fear actually influenced the owners by clear and convincing evidence.”
“Well, unless you’ve got an owner under penalty of perjury testifying that he changed his mind after he was told what Trump said,” Geragos said back.
Dash asked him if he had any evidence.
“Yeah. Well, bingo,” Geragos said.