Foot-Brawl Game, Or, Flag On The Play

Former 49ers quarterback Colin Kaepernick has taken the NFL to court over his very strong case that he was blackballed over his national anthem protests after 2016, and after depositions by NFL owners in the case, it seems that not only does Kaep have a winnable case, he may help bring down Donald Trump as well.

The first snippets of testimony have emerged from the depositions taken in the Colin Kaepernick collusion grievance. And it’s becoming even more obvious that the NFL changed its anthem policy at the direct behest of the President. 

Cowboys owner Jerry Jones, while testifying in the Kaepernick collusion grievance, shared the details of a phone call with the President.

“This is a very winning, strong issue for me,” the President told Jones, according to Andrew Beaton of the Wall Street Journal. “Tell everybody, you can’t win this one. This one lifts me.” 

The President was right. There was no way to win. Even by giving in. 

Per Beaton, the NFL declined comment on the matter, citing the confidentiality that applies to the grievance proceedings. A White House official did not dispute the testimony.

And as Kaep's lawyer pointed out last week, the Oval Office interfering in directly in business personnel decisions is a legal no-no.

As noted on Thursday by LawAndCrime.com, attorney Mark Geragos suggested in a Thursday tweet that efforts of the top two members of the executive branch to pressure the NFL to force players to stand for the anthem potentially run afoul of Title 18, Section 227 of the United States Code. A violation of 18 U.S.C. 227 arises if the President and/or the Vice President intended “to influence, solely on the basis of partisan political affiliation, an employment decision or employment practice of any private entity” and “influence[d], or offers or threatens to influence, the official act of another.”

A clear example of a prohibited action under 18 U.S.C. 227 would arise if, for example, the President pressures a news outlet to fire a reporter who asks too many tough questions, under threat of revoking access. While more murky as it relates to the NFL, it seems fairly clear that the President and/or the Vice President have pressured (successfully) the NFL to remove the pre-existing right of its players to protest during the national anthem. 

It feels too simple to be applicable, but the language is as plain as it can be. And the punishment feels too harsh, with imprisonment of up to 15 years and potential disqualification from holding office. 

But the law contains a bright line that potentially may have been crossed. The NFL is a private employer. The President and/or the Vice President successfully pressured the NFL to change its anthem policy to remove the right of players of protest during the anthem, which amounts to an employment practice.

In other words, Jerry Jones testifying that Donald Trump asked him and the other NFL owners to change their national anthem policy for players specifically because it helped Trump politically is kind of a big, big deal.

I'm betting I'm not the only person who noticed, either.