Colin Kaepernick scored first in his legal showdown with the NFL.
In the end, there aren’t likely to be any real winners.
Kaepernick’s collusion case against the league that doesn’t have a place for him took a big step forward when an arbitrator turned back the NFL’s request for a summary judgment — in essence, ruling that there was at least enough evidence to proceed to a full-blown, binding arbitration hearing for the former San Francisco 49ers quarterback.
The longer this whole mess drags on, the worse it is for a league that has already taken quite a public-relations battering over its players taking a knee during the national anthem to protest social injustice.
Then again, it’s hard to see an outcome where Kaepernick gets what he really wants: a chance to play again in the NFL.
His playing career, in all likelihood, is over.
“This is good news for Kaepernick that it goes forward, but my feeling all along has not changed: This is uphill climb for him,” said Andrew Brandt, executive director of the Moorad Center for the Study of Sports Law at Villanova University.
“To prove collusion is more than just teams deciding for whatever reason that they prefer other quarterbacks to Colin Kaepernick. That’s not collusion,” Brandt went on. “Collusion is two or more teams — backed up with evidence — deciding not to sign Colin Kaepernick. Colluding is two or more NFL entities colluding against signing him.”
While it seems abundantly clear that the NFL has blackballed Kaepernick, as well as his former teammate Eric Reid (who also has a collusion grievance against the league), actually proving this is a coordinated effort is a whole different matter.
“This has been going on for quite a while and we’ve not seen any smoking guns, at least not publicly,” Brandt said Friday in a telephone interview. “In our 24-hour media, with so much focus on this, I would think if there’s a smoking gun, we would’ve seen it by now.”
Even if one emerges and Kaepernick claims an overwhelming legal victory, he’ll have to settle for being a very rich but still very much unemployed former NFL quarterback.
Arbitrator Stephen Burbank can award tens of millions of dollars in damages.
He can’t order a team to give Kaepernick a job.
That said, the NFL can’t seem to break free of a divisive issue that could have far-reaching implications down the road, especially when the collective-bargaining agreement expires after the 2020 season. An already testy relationship with the players — some of whom have carried on Kaepernick’s cause by kneeling or raising a fist during the national anthem — only figures to get worse.
Heck, the league already had to back off the supposed national anthem policy it adopted in late May, which would’ve allowed players to stay in the locker room as a form of absent protest but required them to stand if they came on the field.
“This is really a lose-lose situation for the league,” said Jodi Balsam, who worked in the NFL’s legal office from 1994-2007 and now teaches sports law at Brooklyn Law School and New York University. “Obviously if the NFL loses, they have a lot at stake. But even if they win on the merits — and, by the way, all the odds-makers say they will win on the merits — it’s still a loss. They will have had to litigate this with all the distractions and expense. That means Colin Kaepernick is still on the public stage for another few months as the hearing plays out.”
Now that the case is moving forward, it could be ripe for a settlement.
The minute Burbank turned them down, the NFL’s lawyers were surely advising their billionaire clients that it might be a good time to write out a big fat check to Kaepernick as part of a confidential settlement that makes this whole thing go away.
“This is a leverage point in the arbitration,” said Andrew Stoltmann, a Chicago-based arbitration attorney who has handled more than 1,000 claims. “Reason would seem to dictate that if there’s going to be a settlement, it’s going to happen now, after this arbitrator’s decision, or a couple of weeks before the hearing begins.”
But even if the league wants to settle, there’s no indication that Kaepernick is willing to back down. By all indications, he sees this as a higher calling, a chance to carry through on something far more significant than one man’s professional and financial future. He showed how much it all means to him by donating $1 million to various social causes even though he didn’t have a job.
“It’s extremely dangerous for the NFL that you might have a plaintiff in Kaepernick who doesn’t really care about the money, but rather wants to embarrass the NFL,” Stoltmann said. “But think about it: If you’re an unemployed former athlete and someone dangles a $50 million check in front of you, or a $75 million check, that’s extraordinarily hard for any person to reject.”
Even if a financial settlement is reached, the NFL will make sure that there’s no admission that it worked in unison to keep Kaepernick out of the league.
The owners have no intention of giving up their ultimate power over the players: the right to sign — and not sign — whoever they want.
“There’s another principle at stake here, the principle that you have significant discretion as an NFL owner and coach to construct a squad that’s not just based on talent but on character and camaraderie and a community to win,” Balsam said.
“Are they entitled to make decisions about roster spots and playing time based on players being team players and conducting themselves in the public image that the owners want to project? Absolutely. Are they allowed to say Colin Kaepernick is not right for our team because he’s a disruptive presence and we don’t want him on our team? They absolutely have that right.”
So, on we go.
Toward an ending with only one likely outcome.