The NFL was already bracing for more controversy this season following their foiled attempt to block players from protesting against racial injustice during the national anthem, and on Thursday they got more bad news: an arbitrator rejected the NFL’s request to dismiss Colin Kaepernick’s collusion grievance against the league. That means the case will proceed to a trial-like hearing.
Kaepernick’s attorney, Mark Geragos, announced the news on Twitter:
The former San Francisco 49ers quarterback filed a grievance against the NFL in October 2017, accusing the league of colluding to keep him off the field after he started protesting during the anthem in 2016. In March 2017, Kaepernick left to become a free agent before the 49ers could cut him. Though he once led the 49ers to the Super Bowl, teams repeatedly passed him over in favor of quarterbacks generally seen as less talented.
Under the collective bargaining agreement between the league and the NFL Players Association (NFLPA), teams cannot conspire against a particular player. The burden is on Kaepernick to prove to an arbitrator that the teams colluded to keep him out of the league. Evidence could come in the form of documents, recordings, or sworn testimony. Over the past year, some of the NFL’s most powerful owners have given depositions in the case.
One looming question is whether owners kept Kaepernick out of the league over President Trump’s attacks against him and other players who protested on the field. According to a Wall Street Journal report, Dallas Cowboys owner Jerry Jones said in his deposition that Trump told him he should let fellow owners know that he wouldn’t stop his attacks. “This is a very winning, strong issue for me,” Trump said, according to Jones. “Tell everybody, you can’t win this one. This one lifts me.”
In rejecting the league’s request for a summary dismissal, arbitrator Stephen Burbank found that Kaepernick has enough evidence to warrant a full hearing. While that proceeding will resemble a trial, with the presentation of evidence and lawyers questioning witnesses under oath, Burbank will act as judge and the proceedings will be kept private.
The hearing is expected to take place by the end of the year, coinciding with football season. Aside from distracting NFL owners, the outcome could be devastating. Kaepernick is seeking damages equal to what he would have earned if he were still playing in the league. Kaepernick could be awarded compensatory damages for the pay he lost due to collusion, in addition to punitive damages, potentially totaling tens of millions of dollars.
Far worse for the NFL, if Kaepernick is able to prove he was the victim of a widespread conspiracy perpetrated by the league, the NFLPA could have the option of terminating the collective bargaining agreement. Michael McCann of Sports Illustrated explains that could have dire consequences for the league, though the players’ union probably won’t pursue that option:
Nonetheless, the termination of the CBA would open the door for the NFL and NFLPA to enter a new labor crisis that could lead to very different economic rules for players. One might imagine that the NFLPA would have serious reservations about pursuing such a path, at least without a clear sense and shrewd strategy as to where it would land them—and whether that would be a better or worse place than they currently occupy. In other words, even in the unlikely event that the NFLPA could terminate the CBA, it’s unlikely that the NFLPA would invoke that option.
The easiest solution for the NFL is to settle with Kaepernick before the hearing, but since he was already willing to risk his NFL career to draw attention to social justice issues, it’s unclear if he’d go for that.