In the collusion grievance he and his lawyer filed against the NFL, Eric Reid faces the same high burden of proof Colin Kaepernick does in his grievance filed last October.
Reid has to prove by a “clear preponderance of evidence” that the league — or at least two teams; or the league and at least one team — has agreed to refuse to sign him in free agency this offseason, which violates the collective bargaining agreement.
And the grievance the NFL Players Association filed this week on Reid’s behalf might reveal an additional story, says sports law professor and Sporting News contributor Cari Grieb.
Acknowledging that she had not seen either Reid grievance, Grieb said the union’s press release announcing its grievance hints that there might have been an NFL violation of the collective bargaining agreement other than (or in addition to) the CBA’s article that prohibits collusion.
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"The CBA would prohibit disciplining or terminating a player solely because of certain conduct," Grieb said. The standard player contract gives teams the right to release or punish a player for "conduct detrimental to the team," she added, but the collective bargaining agreement limits the maximum penalties they can impose for "conduct detrimental to a club" to a four-game suspension and a fine equivalent to one week’s salary.
"In the hierarchy of contracts," Grieb said, "the CBA trumps the standard player contract."
Grieb, an adjunct professor at John Marshall Law School and at Northwestern University’s sports administration program, has not seen either of the Reid grievances. But she said the union’s release Monday announcing their “non-injury grievance,” which includes a five-point summary of the case, indicates that the NFLPA is aiming at something beyond the collusion grievances filed by both Reid and Kaepernick with their own attorney. Mark Geragos represented both players in their collusion cases.
The union referenced its request for the agents of players who have protested during the national anthem to document “potential violations” of the labor agreement, Grieb said. She noted that there may be more than a single violation is telling. There was one fairly clear inference about Reid’s reported Bengals workout last month, in which not kneeling during the anthem was made a condition of the team signing him.
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But, Grieb said, "It's possible this isn’t just about Eric Reid. There may be more than one player who was cut or released because he protested."
The NFLPA’s release on its Reid grievance also points out: "There is no League rule that prohibits players from demonstrating during the national anthem." More specifically, Grieb said, "The league’s national anthem policy is not part of the CBA and was not collectively bargained. It says that (the players) ‘should’ stand, not that they ‘must’ stand. That’s a very big difference."
With all of that, Grieb said, the high burden of proof for the union’s “non-injury” Reid grievance is the same as for the collusion cases he and Kaepernick filed on their own.
But, she added, it’s possible that Reid’s case "can piggyback off of Kaepernick’s case." The Bengals and their executives and employees had not been among the many team and league witnesses deposed in the Kaepernick case, but they clearly are part of the Reid case.
Plus, the Seahawks reportedly had general manager John Schneider and head coach Pete Carroll deposed in Kaepernick's case based on the feelers they sent out last offseason. Not long after Reid’s aborted Bengals tryout last month, the Seahawks cut short talks with Kaepernick again, reportedly over demands that he not protest if signed.
And there is whatever evidence emerged from the owners-players meeting last October for which the New York Times obtain recordings — when Kaepernick was discussed, and Reid participated.
"So, Kaepernick can very well help Eric Reid’s cause," Grieb said.
It makes sense now that the union’s action seems to bring into dispute not only additional players, but other parts of the collective bargaining agreement.
