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  • Is it possible that Colin Kaepernick’s collusion grievance against the NFL could lead to the dissolution of the CBA? Here's what to expect going forward in this potential lawsuit.
By Michael McCann
August 30, 2018

In a landmark ruling that substantially alters the complexion of the collusion grievance brought by Colin Kaepernick, arbitrator Stephen Burbank has denied the NFL’s request for summary judgment. Burbank’s ruling means that, absent a negotiated settlement between Kaepernick and the NFL, Kaepernick’s grievance will proceed to a trial-like hearing before Burbank later this year. Burbank’s ruling also indicates that all 32 teams remain parties in the grievance. This is a subtle but potentially groundbreaking point since if Burbank finds that 14 or more teams engaged in collusion, the NFLPA could acquire the option of terminating the collective bargaining agreement.

Why Burbank ruled in favor of Kaepernick

The technical reason for Burbank’s ruling is that the NFL and its teams failed to convince Burbank, a law professor at the University of Pennsylvania Law School, that they had met the necessary standard for summary judgment. Under Article 17 of the CBA, Burbank would have granted summary judgment if Kaepernick hadn’t shown enough evidence sufficient to raise a genuine issue of material fact.

The “genuine issue” is whether the 30-year-old Kaepernick has been victimized by collusion, which in this context refers to two or more teams, or the league and at least one team, conspiring to deprive Kaepernick of his collectively bargained right to sign with a team. Kaepernick, who earlier in his career led the 49ers to a division championship and a Super Bowl appearance, contends that teams have conspired to keep him out of the NFL. They have allegedly done so on account of the controversy surrounding his kneeling during the playing of the national anthem.

A key element of Kaepernick’s argument is that owners are fearful about the capacity and the willingness of President Donald Trump—an ardent critic of Kaepernick and of other players who kneel during the anthem—to damage the league’s business and legal interests. Such a concern was documented in audio recordings of owners during an October 2017 meeting that centered on Kaepernick and the national anthem. This same concern resurfaced in June 2018 when Trump rescinded a White House invitation to the Super Bowl champion Philadelphia Eagles on account of his perception that Eagles players disagreed with him on the anthem (in reality, not one player on the Eagles kneeled during their Super Bowl season) and because only a handful of Eagles players were likely to attend. Indeed, on June 4, the White House issued a statement concerning the cancellation of the Eagles’ appearance at the White House. The statement stressed that Eagles players “disagree with their President because he insists that they proudly stand for the National Anthem, hand on heart, in honor of the great men and women of our military and the people of our country” and that Eagles fans “deserve better.”

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To be clear, Trump opining about Kaepernick or even the President openly discouraging owners from signing Kaepernick would not prove collusion. Trump, for purposes of the CBA, is merely a third party. Collusion requires some combination of governed parties—be they multiple teams or the league and at least one team—colluding. Still, if owners joined hands to exclude Kaepernick because of their reaction to Trump, the President would become a relevant person in Kaepernick’s grievance and even a potential witness (see more below).

Kaepernick, who hasn’t been offered an NFL contract since he opted out of his deal with the San Francisco 49ers 547 days ago, filed his grievance on Oct. 15, 2017. Since that time, his legal team has deposed a targeted group of owners and executives. This group includes NFL commissioner Roger Goodell, Dallas Cowboys owner Jerry Jones, Houston Texans owner Bob McNair, New England Patriots owner Robert Kraft and Denver Broncos general manager John Elway.

Elway recently shared his depiction of his testimony in response to a press conference question posed by The Athletic writer Nicki Jhabvala. Elway’s answer raised questions about why he was interested in paying Kaepernick $7 million in April 2016 but not at all interested in Kaepernick in March 2017—especially after Kaepernick had played better in the 2016 season than in the previous campaign. Burbank might have interpreted Elway’s changed position as related not to Kaepernick’s play but instead to Kaepernick’s anthem protests, which began in August 2016.

Other owners and officials were targeted for different reasons—and their responses were surely studied by Burbank. Kraft, for example, was of interest to Kaepernick’s attorneys because he flew with Trump on Air Force One on March 19, 2017. One day later, Trump, in a much-publicized speech in Louisville, sharply criticized Kaepernick and his anthem protests. It was the first time the President had done so publicly. Kaepernick’s attorneys—led by Los Angeles attorneys Mark Geragos and Ben Meiselas—likely asked Kraft about whether he and Trump had discussed Kaepernick on Air Force One.

While NFL officials and owners have steadfastly denied that there is any conspiracy to deny Kaepernick a chance to play, Burbank clearly believes that the matter necessitates more scrutiny. Burbank has reviewed witness testimony and related evidence, possibly including video, audio recordings, texts, emails and written memoranda. He has reached the decision that a trial is warranted.

The pending trial and the significance of Burbank—and not a jury—presiding over it

Burbank has not announced when the trial will occur, but it will most likely happen before the end of the year. Keep in mind, the forthcoming trial won’t be a “trial” as that term is commonly understood. There will be no jury, Burbank won’t be robed as a judge and it will all be conducted in private. This is because Kaepernick’s “trial” is technically an arbitration hearing. The term “trial” is used mainly out of convenience and because it will resemble a trial in many ways—evidence will be presented and attorneys for each side will question witnesses, who will testify under oath and swear to tell the whole and complete truth.

Witnesses in the upcoming trial will almost certainly include Kaepernick, Goodell, Jones, Kraft, McNair and Elway. Kaepernick’s attorneys might also pursue Trump as a witness. Whether the President can be compelled to testify in a legal proceeding is, of course, a legal topic of much debate these days. However, it is generally understood that the President is immune from civil litigation over matters that occurred while he or she is in office (but, per the U.S. Supreme Court in Bill Clinton v. Paula Jones, the President is not immune from matters that occurred before he or she took office or that are unrelated to the office of the Presidency). This legal framework indicates that Trump, who was in office when he began to opine on Kaepernick and did so presumably for political purposes, cannot be compelled to testify in Kaepernick’s trial.

For NFL owners and league executives, being called to testify at Kaepernick’s trial will be, at a minimum, disruptive. This is particularly the case since the hearing will likely occur during the NFL regular season. Obviously, their schedules are extremely busy during this part of the year. In addition to having to expend their limited time and energy on a legal dispute, owners will need to be careful that their trial testimony is consistent with the testimony they previously gave during their depositions. If they change their accounts, Burbank will be much less inclined to believe them. In such scenario, it would also be possible that the owners would have perjured themselves.

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The scope of evidence presented in the trial will also be more expansive than what Burbank has already seen. A trial will be a full merits hearing. This means the NFL could be compelled to share sensitive and confidential records on any matters related to Kaepernick. Expect Kaepernick’s attorneys to dig deep and attempt to force the NFL to reveal information the league would prefer to keep private. To illustrate, the attorneys will want to know about interactions between league officials and EA, 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.

The fact that Burbank will make the decision also deserves close attention. He has already ruled against the NFL and in favor of Kaepernick on the summary judgment. That means that Burbank has already seen some evidence of collusion and/or hasn’t found the owners to be fully credible and honest about Kaepernick. In a courtroom trial, a party who loses on a motion for a summary judgment before a judge will sometimes feel confident that a jury will later rule for them. That’s not the case here: Burbank was, is and will remain the decider.

It’s been said that Goodell is judge, jury and executioner for player misconduct. You might say Burbank is the judge, jury and executioner for NFL misconduct, at least as it potentially relates to Kaepernick.

Kaepernick is by no means guaranteed to win the trial

While Kaepernick is no doubt thrilled by Burbank’s summary judgment ruling, the ruling doesn’t guarantee that Burbank will ultimately rule in Kaepernick’s favor. Under Article 17 of the CBA, the burden of persuasion for a summary judgment is whether Kaepernick has shown enough evidence to raise a genuine issue of material fact. In contrast, the burden of persuasion for Kaepernick to prevail in the trial is whether he demonstrates by a “clear preponderance of evidence” that collusion occurred and that such collusion caused him economic injury.

The phrase “clear preponderance” reflects a high standard of persuasion. It is a burden decidedly higher than the “preponderance of evidence” or “more likely than not” burden used in civil trials.

It is thus possible that Burbank could find that while Kaepernick proved there was a genuine issue of material fact, Kaepernick didn’t prove by a clear preponderance of evidence that collusion occurred.

Burbank will likely have the final say on Kaepernick’s grievance

Whichever side loses the trial could then sue the other in a U.S. District Court. The lawsuit would demand that a federal judge vacate Burbank’s arbitration award (ruling) on grounds that it was improperly decided.

The chance of such a lawsuit succeeding would be very slim. Federal judges seldom vacate arbitration awards. This reflects federal law, which requires that judges accord arbitrators high deference. It also reflects common sense and judicial economy: If two sides agreed to resolve their dispute privately before an arbitrator, then they should accept the outcome of that arbitration. Accordingly, those parties shouldn’t demand the finite time of judges and taxpayer-funded resources of courts just because an arbitration didn’t turn out as they had expected.

Of course, both the NFL and NFLPA have hastily gone to court to challenge arbitration awards in the context of player discipline (for example, see Deflategate). Ultimately, though, the courts have upheld those awards. The same would likely prove true here, especially since Burbank is a neutral arbitrator (unlike Goodell, who has served as the arbitrator for player challenges to punishments that Goodell originally issued).          

It is possible (albeit unlikely) that Kaepernick winning would lead to the CBA’s termination

One of the more unusual clauses in Article 17 of the CBA—which is set to expire in 2020—is that the NFLPA can elect to terminate the entire CBA if the arbitrator identifies certain kinds of severe and pervasive collusion. One circumstance relevant to Kaepernick’s grievance would be if Kaepernick shows “clear and convincing evidence” that 14 or more teams colluded against him and if Burbank finds that teams engaged in “willful collusion with the intent to restrain competition among teams.”

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Kaepernick would obviously need to possess substantial evidence to convince Burbank that nearly half the league willfully colluded against him. Yet, as mentioned above, it is potentially telling that Burbank has not dismissed any of the 32 teams from the grievance. It’s thus theoretically possible that Kaepernick could not only prove collusion but also prove that there is a wide-ranging conspiracy against him.

Termination of the CBA under Article 17 also requires that the NFLPA was the party that brought the proceeding which lead to a finding of 14 or more teams colluding. The NFLPA clearly supports Kaepernick’s grievance and has been actively involved in it. However, Kaepernick is the party that originally brought the grievance. It’s unclear from the language of Article 17 if the NFLPA has played the requisite role to trigger the potential option of terminating the CBA.

The termination of the CBA would be a monumental consequence. At the risk of brutally summarizing American labor law and antitrust law, the CBA effectively immunizes NFL rules that restrain competition over wages, hours and other working conditions from antitrust lawsuits. Those rules include major pieces of the NFL economic model, such as the salary cap, the draft and the rookie wage scale. Think of how each of those rules could be described as grossly anti-competitive: The salary cap bluntly restrains the capacity of players to maximize their earnings while the draft and rookie wage scale sharply restrict the capacity of amateur players to sign with their preferred team and at salary amounts that reflect competition for their services. However, since each of those rules is collectively bargained, they gain the protection of what’s known as the non-statutory labor exemption. Through a series of influential court rulings, the exemption expresses that workplace rules impacting wages, hours and other working conditions are exempt from antitrust litigation if those rules reflect the good-faith bargaining of the union and management.

In reality, even if the NFLPA elected to terminate the CBA, the salary cap and other rules would likely continue to enjoy immunity from antitrust litigation. This is because the immunity can continue even after a CBA has expired so long as the parties (here the NFL and NFLPA) remain in good-faith negotiations.

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 NFL may want to reach a settlement with Kaepernick—but would Kaepernick be willing settle?

Expect some owners to privately encourage the NFL to now try to strike a settlement with Kaepernick in order to avert a trial. Even if the league ultimately prevails in the trial, the trial itself could cause reputational damage to certain owners and league officials. It could also lead to disclosure of sensitive information to which the public isn’t aware.

Plus, if Kaepernick prevails in the trial, he would be awarded substantial monetary damages. Under Article 17, Kaepernick would be awarded both compensatory damages and non-compensatory damages (the latter of which can be regarded as punitive damages or punishment). Compensatory damages would reflect the amount of money Kaepernick would have earned but for collusion, while non-compensatory would equal twice the amount of compensatory damages. In other words, if Kaepernick could prove he would have signed an $8 million contract but for collusion, he would be awarded $24 million in damages: $8 million compensatory + $16 million non-compensatory. Kaepernick’s attorneys would cite contracts signed by comparable quarterbacks as a means of trying to establish the deleterious impact of collusion on his earnings.

For a league that generates $14 billion a year in revenue, offering Kaepernick (say) $20 million to settle his case would be a drop in the bucket. Billionaire owners who Kaepernick’s attorneys would aggressively cross-examine in a trial might view a payment of $20 million to avoid a trial as money well spent.

But like tango, a settlement takes two. It’s not at all clear that Kaepernick is even open to a financial settlement, let alone what he would demand in a settlement. Kaepernick appears to view his grievance more as a tool for social justice rather than a means for money. Remember, this is someone who was willing to see his lucrative NFL career ruined on account of protesting over social issues. Whether one loves, hates or is indifferent toward Kaepernick, he doesn’t seem like a person who is making decisions with his bank account as his guiding light.

For Kaepernick to accept a settlement, he’ll likely want more than millions of dollars. He’ll probably demand that the NFL agrees to an anthem policy with the NFLPA that permits kneeling. He’ll probably also demand that the league will have to donate to charities. One thing is for sure: don’t expect a settlement to be a simple matter of dollars and cents. For that reason, a settlement might not happen and then both sides would see each other in a trial.

Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.

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