An arbitrator declined to dismiss Colin Kaepernick’s collusion grievance against the NFL and teams, allowing the case to proceed to a triallike hearing before that same arbitrator. That hearing is expected to take place this year.
The ruling was made by Stephen B. Burbank, a University of Pennsylvania law professor who is the arbitrator assigned to resolve disputes between the NFL and the NFL Players Association arising from their collective bargaining agreement.
The NFL had requested summary judgment by Burbank, which amounted to a request for him to dismiss the case. Burbank rejected that request in a decision that was posted by Mark Geragos, an attorney for Kaepernick, on social media.
“On August 28, 2018, the System Arbitrator denied the NFL’s request that he dismiss Colin Kaepernick’s complaint alleging that his inability to secure a player contract since becoming a free agent in March 2017 has been due to an agreement among team owners and the NFL that violates Article 17, Section 1 of the collective bargaining agreement between the NFL and the NFLPA (union),” Burbank’s written statement dated Thursday, released by Geragos, said.
Burbank made his decision after conducting a recent hearing.
He would preside over the hearing that is now expected to be scheduled as the next step in the case and make a ruling afterward.
Kaepernick has not played in the NFL since the 2016 season in which he, as a member of the San Francisco 49ers, refused to stand for the national anthem prior to games to protest racial inequality and police treatment of African Americans. Kaepernick, who started Super Bowl XLVII for the 49ers, opted out of his contract and has not been signed by any team since then. The 49ers have said they would have released Kaepernick, rather than keeping him under the existing terms of his contract, if he hadn’t opted out of the deal.
Kaepernick filed his grievance last year through Geragos and his firm, in consultation with the NFLPA.
The CBA prohibits the league and teams from colluding on decisions about whether a player should be signed. But it also says that a player’s employment status alone, in comparison to players who have been signed, is not enough to prove collusion. Geragos and Kaepernick must prove that the league and teams acted in concert in violation of the CBA.
NFL Commissioner Roger Goodell has said that teams have made their own individual decisions about Kaepernick based on his playing ability.
Kaepernick’s lawyers conducted depositions with numerous owners and officials of teams and the league and now could call those officials as witnesses to testify in a triallike setting before Burbank.
Kaepernick’s ongoing unemployment has been cited by some NFL players as a significant issue as the league and union deliberate over a potential new national anthem policy for the sport. The league put a modified anthem policy ratified by the owners in May on hold as part of an agreement struck with the union in July.
Players’ protests during the anthem continued last season with Kaepernick out of the league. The protests have been sharply criticized by President Trump, fueling an intense national controversy.
The CBA says that the federal rules of evidence apply to a collusion hearing and that the “complaining party shall bear the burden of demonstrating by a clear preponderance of the evidence that (1) the challenged conduct was or is in violation of Section 1 of this Article and (2) caused any economic injury to such player(s).”
Under the CBA, Burbank is empowered to award Kaepernick compensatory damages, based on the economic harm suffered by Kaepernick, and additional damages that would be a multiple of the compensatory damages if he finds that the league and teams improperly colluded to keep Kaepernick from being signed.