In what is the most tangible victory thus far for Colin Kaepernick and his legal team, the arbitrator overseeing his collusion case has denied the NFL’s dismissal attempt.
The decision comes in the wake of a summary judgement hearing in which the NFL argued Kaepernick’s attorneys did not have the evidence to meet an appropriate standard proving a collusive effort to keep the former San Francisco 49ers quarterback out of the league.
Both sides filed arguments that included giving arbitrator Stephen Burbank the evidence each had produced in discovery. Those arguments led Burbank to determine the case should move forward, a clear loss for the NFL.
Burbank’s decision suggests there is enough merit in the arguments and evidence produced by Kaepernick’s legal team to warrant a trial on the facts of the case.
The NFL requested a summary judgement ruling from Burbank earlier this summer, saying that Kaepernick’s legal team hadn’t reached the standard to prove that the league and its owners colluded to keep Kaepernick out of pro football.
Since he opted out of his contract in March 2017 with the San Francisco 49ers, Kaepernick hasn’t landed with a team, sitting out all of last season.
Is Kaepernick winning his collusion case?
Burbank’s decision doesn’t guarantee a Kaepernick victory.
It merely means that in their first real head-to-head battle in front of the arbitrator, Kaepernick’s legal team overcame the NFL’s attempt to kill the collision case. Whether or not it has tipped the scales in Kaepernick’s favor overall remains to be seen. But it’s worth noting Burbank is the arbitrator who will ultimately hear and rule on the case.
It stands to reason that if Burbank sided with Kaepernick’s attorneys on whether the evidence had enough traction to move forward, he must see something compelling within the evidence and arguments produced by Kaepernick’s team. Had he not, summary judgement would have gone in favor of the NFL and Burbank would have granted what the league wanted: an outright dismissal.
What is important now – and what is still unknown – is what Burbank does in the wake of this decision. According to sources familiar with the collusion case, Kaepernick’s legal team would like to reopen the discovery and deposition portion of the case. Meanwhile, the NFL has opposed that in recent months.
Now Burbank must decide whether Kaepernick’s attorneys can once again begin seeking documents, digital evidence or additional depositions. Sources have told Yahoo Sports that Kaepernick’s legal team is expected to again pursue those avenues to continue gathering evidence.
What happens next?
A trial date for the collusion case is expected to be set before the end of the 2018 calendar – but not before the issue of additional discovery is decided. If Burbank reopens discovery for Kaepernick’s legal team, that would mean another round of evidence gathering and also likely entail additional depositions of team owners.
The key component of this: The fact that the NFL passed and then froze a rule that would allow teams to discipline players for conduct during the national anthem at games.
With Kaepernick having been the forerunner of kneeling during the anthem to protest for social justice and racial equality, the entire issue strikes at the core of his case. Now that the league has adopted an actual rule that essentially bans what Kaepernick was doing, his legal team could seek to procure anything and everything that went into creating that regulation. That includes notes of private conversations, emails, text messages or simply more depositions of NFL owners who voted in favor of the measure.
Donald Trump still looms
There also remains the dangling issue of President Donald Trump. Sources told Yahoo Sports that Kaepernick’s legal team was aiming to get a deposition from Trump regarding comments he has made to NFL team owners about protests and Kaepernick. That was prior to the NFL’s decision to seek summary judgement, which essentially closed off discovery and deposition requests.
It’s unknown whether Kaepernick’s team will continue to pursue Trump, whose influence on owners has been a significant part of the depositions that have already taken place.
There are a lot of unanswered questions about the path of the collusion grievance. But the most important issues at hand have been resolved: Kaepernick’s case moves forward despite the NFL’s attempt to quash it; a trial of the facts will take place; and the arbitrator who made the judgement on both of those developments has given Kaepernick’s legal team an adrenaline shot of optimism in a long uphill battle.