Commentary Economic Justice

Kaepernick’s Lawsuit Shows Why Action Across the Board Is Necessary to Support Workers of Color

Syreeta McFadden

Colin Kaepernick's dispute with the NFL is also one that reveals contentious relationships between workers of color and management in our current political moment.

Last week, ESPN reported that at a meeting between National Football League (NFL) owners and players on October 17, Houston Texans’ owner Bob McNair said, “We can’t have the inmates running the prison.” The meeting had been scheduled in an attempt to bridge differences between the players who choose to protest police violence and racism by kneeling during the national anthem and the owners who fear anger from fans—and, by extension, losing money. McNair has since apologized for his remark, but the next Sunday, the majority of the Texans players kneeled before the game.

This meeting had come on the heels of a contentious six weeks, where players across the NFL have kneeled in solidarity with Colin Kaepernick, the most noticeably talented player in his prime absent from any of the 32 teams’ rolls. Kaepernick had no initial quarrel with the NFL, only the U.S. state’s failure to institute systems that remedy the epidemic level of police violence endured by marginalized communities. He consulted with a former soldier who suggested kneeling, a point that cannot be overstated enough.

Kaepernick left the 49ers in March as a free agent and has not been signed to a new team. In October, he filed a grievance suit against NFL team owners through the players’ collective bargaining agreement, which was signed in 2011. Yet Kaepernick’s dispute with the NFL, not to mention McNair’s comments and the overall reaction from the league, is also one that reveals contentious relationships between workers of color and management in our current political moment.

Over the last couple of years, we’ve witnessed a disturbing trend as the Movement for Black Lives grew more prominent in response to police violence in communities of color. The frenzied debate and outrage in recent months, including from the U.S. president himself, about whether or not other people in the United States have the right to protest—or further, that their right to protest should be co-determinant with their private employment—confounds and contorts logic.

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I’m old enough to remember when the players of the Los Angeles Clippers flipped their warmup jerseys inside out in protest of their then-team owner, Donald Sterling, whose racist comments had sent shockwaves throughout the National Basketball Association (NBA). The league’s most prominent player, Lebron James said, “There’s no room for Donald Sterling in the NBA—there is no room for him.” The furor resulted in Sterling’s lifetime ban from the NBA.

As some members of the public recoiled in horror at Sterling’s comments, others revisited a 2009 wrongful termination lawsuit initiated by NBA Hall of Famer Elgin Baylor, who had served as general manager for the Clippers for more than 20 years. In the suit, Baylor alleged that Sterling was creating “a Southern plantation-type structure” and had a “pervasive and ongoing racist attitude.” Baylor was not successful in his suit, but the events of spring 2014 seemed to suggest that the allegations in his complaint reflected Sterling’s character—and also showed that it took collective pressure and action to enact change.

The relationship between the players’ union—which had supported the protest—and NBA owners in 2014 was a rare moment of unity in which their ethics aligned. It was a remarkable instance where the values between employers, fans as consumers, and employees reflected not only the values of the organization, but of society writ large.

But that unity has not been extended in Kaepernick’s case. Although the NFL Players Association is supporting him, if Kaepernick can prove that the NFL conspired or colluded to keep him out of the league, it could trigger the termination of the agreement. Two provisions in the contract indicate that in the event of proof of collusion, the contract can be prematurely terminated, and further, that the contract’s termination can arise in only one incident of collusion involving one player with “clear and convincing evidence of a violation.” In turn, as NBC Sports reported, “Kaepernick could give all players a tremendous piece of leverage, moving up the expiration of the contract by more than three years and forcing the owners back to the bargaining table.”

Kaepernick’s attorney posted in a statement:

If the NFL (as well as all professional sports leagues) is to remain a meritocracy, then principled and peaceful political protest—which the owners themselves made great theater imitating weeks ago—should not be punished and athletes should not be denied employment based on partisan political provocation by the Executive Branch of our government. Such a precedent threatens all patriotic Americans and harkens back to our darkest days as a nation. Protecting all athletes from such collusive conduct is what compelled Mr. Kaepernick to file his grievance.

To be sure, the NBA and NFL are different leagues with different unions, fanbases, and owners. But overall, the issue remains: Athletes are employees with workplace and constitutional rights. Their celebrity, which they have earned because of their work, has encouraged them to leverage that visibility to support causes. This doesn’t mean they are not subject to the same kinds of systemic discrimination that results in unemployment when they choose to speak out. And yet there’s an odd belief system among fans—and consequently team owners—that because they are well paid, their autonomy and outrage at societal injustices that would prompt protest is forfeit.

There isn’t an actual tipping point for workers of color to be more emboldened by high-profile athletes like Kaepernick to sue employers for toxic workplaces, or punitive and stymied employment practices. If anything, all we know is that we’re less alone when we consider these cases in the aggregate. If there’s some sort of universal tipping point right now, it’s that we can clearly see that employment and personhood as a worker of color is under threat as white supremacy’s aims permeate across platforms. The suit only highlights the need for a resurgent and inclusive labor movement to resist.

Last year, at a panel exploring the intersections between social justice and sports, Carmen Berkeley, director of civil, human, and women’s rights for the AFL-CIO union, noted that a culture shift is needed in the labor movement, “because this isn’t about white guilt” or privilege. “This is about saying ‘Communities of color make up a significant portion of the labor movement, I care about these people and it is time to figure out how we have full integration. Not integration that makes people feel comfortable, but integration that moves a progressive agenda forward,'” she continued.

Precarious economic status makes lodging these complaints challenging for Black and brown workers. For some, it’s a negotiation between principles, rights and survival.

And while Kaepernick’s lawsuit against a hostile work environment as a highly paid celebrity is in the news, low-wage service industry workers are particularly vulnerable. In moments where they seek recourse, the economic and personal impact can be devastating. This is heightened by the current, ever-present looming vitriol from the executive branch, where co-workers’ and customers’ bad behavior is emboldened by the boorish (and racist) attitudes from President Donald Trump.

Take, for instance, a recent story of two Black gay men who filed a discrimination suit against BLT Prime, the steakhouse in Trump International Hotel in Washington, D.C. The men allege that while employed, their manager had routinely pushed Black employees into the least lucrative shift and “subjected them to discriminatory situations by fellow staff and customers.” Irving Smith, who worked as a waiter, also alleged that his coworker made racists statements, saying, “This is white America time, you need to get used to it, and if you don’t get used to it you should go work somewhere else.”

It’s bigger than football. It’s all of our rights on the line. There have been far more perilous times for workers of color than these, but what is unique and particular in this instance is that the weight of the federal executive power now rests in undermining the very foundations of U.S. citizenship, including the right to be free from racial discrimination.

Kaepernick’s cause for workers of color is the cause of engaged citizenship and personhood: a test of whether a worker can change an employer policy that silences its employees. His dignified protest did not infringe upon his ability to do his job. An achievement in this case is really an argument for the labor movement: that the more vulnerable workers need protections and unions to fight.

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