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Colin Kaepernick's lawyers may seek testimony by Trump, Pence in collusion grievance

San Francisco 49ers' Eric Reid (35), quarterback Colin Kaepernick (7) and Eli Harold (58) take a knee during the singing of the national anthem before a game against the New England Patriots on Sunday, Nov. 20, 2016 at Levi's Stadium in Santa Clara, Calif.

JOSE CARLOS FAJARDO/BAY AREA NEWS GROUP/TNS

By MARK MASKE | The Washington Post | Published: June 7, 2018

Attorneys for quarterback Colin Kaepernick and safety Eric Reid are contemplating seeking testimony by President Donald Trump and Vice President Mike Pence as part of the collusion grievances accusing NFL teams of conspiring improperly to keep the two players out of the league, a person familiar with the case said.

Kaepernick and Reid would be expected to attend those depositions if they occur, said the person, who spoke on the condition of anonymity because of the sensitivity of the topic. But the scheduling of such testimony could require significant legal maneuvering if the depositions are opposed by the White House.

The intention of the legal team for Kaepernick and Reid to seek testimony by Trump and Pence, who have played key roles in the national controversy over protests by Kaepernick, Reid and other NFL players during the national anthem before games, was first reported by Yahoo Sports.

According to the person with knowledge of the case, the lawyers for Kaepernick and Reid could seek approval by the arbitrator overseeing the grievances to pursue depositions of officials not under the jurisdiction of the collective bargaining agreement between the NFL and the NFL Players Association. If that request is approved by the arbitrator, University of Pennsylvania law professor Stephen Burbank, the attorneys for the players could seek subpoenas in federal court to compel Trump and Pence to testify under the Federal Arbitration Act.

Such a formal legal process would not be necessary, according to the person familiar with the case, if the White House would agree to the depositions. If the White House were to resist a request for such depositions, the courts would decide whether a sitting president and vice president could be forced to testify. A 1997 Supreme Court decision allowed a sexual harassment lawsuit against Bill Clinton by Paula Jones to proceed in federal court during Clinton's presidency. Clinton provided more than four hours of videotaped sworn testimony in the Washington office of his attorney.

In this case, the attorneys for Kaepernick and Reid could seek information about conversations among Trump, Pence and NFL owners. Owners have said during depositions in the case that Trump's intense criticism of the players' protests was a factor in their deliberations about the sport's national anthem policy.

According to the Wall Street Journal, Dallas Cowboys owner Jerry Jones said during his deposition that Trump had told him: "This is a very winning, strong issue for me. Tell everybody, you can't win this one. This one lifts me."

Trump intensified the controversy last September when he said during a campaign speech that owners should fire any player who protests during the national anthem. After owners modified the league's anthem policy last month, Trump said that any player who does not stand for the national anthem "maybe" does not belong in the country. Trump canceled the Philadelphia Eagles' planned visit to the White House this week after learning that most players on the Super Bowl-winning team would not attend.

Pence left a game in Indianapolis last October, drawing praise by Trump, because of protests by San Francisco 49ers players, including Reid.

NFL owners, after leaving the sport's anthem policy unchanged last season, modified it during a meeting last month in Atlanta. The new policy says that a team will be fined by the NFL if any of its players protest during the anthem. The policy makes it a team-by-team decision as to whether a player would be disciplined for protesting during the anthem. It says that players can choose to remain in the locker room for the playing of the anthem but are expected to stand for the anthem if they are on the field.

Christopher Johnson, the CEO of the New York Jets, has said that his team would not discipline any player who protests during the anthem and would pay the league's fine in such an instance. Even so, the new policy has been criticized by many players and other observers who have accused the league and owners of capitulating to Trump, who said the new policy was the right thing for the NFL to do.

Kaepernick began the players' protest movement during the 2016 season while with the 49ers. He refused to stand for the anthem before games to protest police brutality and racial inequality. Reid and other NFL players continued the protests last season while Kaepernick was out of the league. Kaepernick has not been signed by a team since opting out of his contract with the 49ers following the 2016 season. Reid has been unsigned as a free agent this offseason.

The CBA prohibits teams from colluding with one another or with the league on decisions about whether to sign a player. But the lawyers for Kaepernick and Reid must provide evidence that such collusion took place. Under the CBA, the mere facts that Kaepernick and Reid are not signed - and comparisons of them and their playing abilities to those of players who have been signed - are not proof of collusion.

The NFLPA filed a separate grievance on Reid's behalf accusing an NFL team, reportedly the Cincinnati Bengals, of improperly asking Reid about his protests and deciding against signing him based on the issue.

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