Landmark Ruling Paves The Way For Kaepernick vs NFL In Hearing

Arbitrator Stephen Burbank has denied the NFL’s request for a summary judgment in the collusion grievance Colin Kaepernick has filed against the league.

Stephan Burbank, Law Professor and Arbitrator for the NFL

Burbank’s ruling means that, absent a negotiated settlement between the parties involved, Kaepernick and the NFL, the grievance he filed against the league will proceed to a trial-like hearing before Burbank later this year. The arbitrator ruled that 32 teams remain parties in the grievance. If he finds that 14 or more teams engaged in collusion, the NFLPA could then terminate the CBA that is currently in place.

The standard for finding collusion actually isn’t as high as some have made it seem. Kaepernick only has to prove that two or more teams, or the league and at least one team, conspired to deprive him of his collectively bargained right to sign with a team.

The forthcoming trial won’t be a “trial” with a jury. Burbank the “judge” in this case won’t be robed, and the proceedings will all be conducted in private. The “trial” is really a high stakes arbitration hearing. The term “trial” is used as a convenience. It will not only resemble a trial in many ways with evidence being presented, attorneys arguing, and witnesses testifying and swearing under oath, but with Burbank acting as the judge with authority to hand down a ruling like a trial judge, will have in his hands, the power to shift control away from the owners to the NFLPA for decades to come.

Kaepernick’s lawyers will dig deep, so expect a more expansive probe for evidence than what was already done for the hearing. The trial will mean that the NFL could be compelled to share sensitive and confidential records on any matters related to Kaepernick. For example, the attorneys will want to know about interactions between league officials and EA Sports, the makers of the Madden video game series, which in recent years has excluded Kaepernick’s names from songs as if his name was a curse word.

There will probably be grumbling from certain owners behind closed doors pushing the league to settle with Kaepernick. If he were to win, the ruling could pay him something in the neighborhood of $30 million. For a league that generates billions annually, this would be a drop in the bucket to make this entire ordeal go away.  The problem is Kaepernick has already shown that money is not his motivator as he has turned his back on a very lucrative career, and turned toward fighting social issues instead. A settlement between these two parties if one could be reached, would surely include donations to charities, a more palatable anthem policy with the NFLPA and some sort of apology by the league or agreement to work with Kaepernick on social issues.

It’s about to be a wild ride, but will be a quick one as a decision on this will surely come down by the end of the year, stay tuned.


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