After months of being spurned by teams across the NFL, former San Francisco 49ers quarterback Colin Kaepernick filed a lawsuit against the league. His lawsuit claims that the NFL violated Articles 15 and 17 of the league’s 2011 collective bargaining agreement which states that teams cannot collude to restrict any action as it pertains to signing a player. Even though the case is still relatively young, fans and pundits alike are wondering how this case will play out.
“They are going to have to prove that the league violated that language in the Collective Bargaining Agreement,” said Robert McCormick, a Michigan State law professor who worked both in labor and sports law. “How are they going to go about doing that? Do they have anything to suggest a physical agreement? Emails, witnesses that may have overheard a conversations; something physical that can be taken to the Arbitrator. Otherwise they have to persuade the arbitrator that the fact that no one will hire him is by itself is proof of an implied agreement.”
In court documents originally obtained by ABC, Kaepernick’s lawyers also argued that commentary made by President Trump and other members of the Executive Branch also influenced the NFL decision not to sign him. McCormick said that this allegation may be harder to prove.
“Do you have some evidence of (the NFL) buckling to Trump’s admonition or his wishes?” McCormick said, “Yeah it’s true that Trump said what he said and they (the NFL) did what they did but do you have any other evidence that what the league did was a result of what Trump did?”
Perhaps the biggest concern and criticism of the case is Kaepernick’s representative’s ability to produce hard evidence; many saying that without such evidence Kaepernick’s case would be doomed. However, McCormick doesn’t believe that those thoughts are necessarily true, and that even if Kaepernick’s team was unable to find physical evidence, his case may still have a chance.
“It can be an accumulation of circumstantial evidence… it just comes down to the weight of the evidence presented,” McCormick said. “So it’s possible that they could prevail in their case to show an agreement without direct evidence but as you can imagine it’s much, much harder.”
There are some unique elements of Kaepernick’s case that aren’t typical for a labor arbitration. For one, Kaepernick wants the proceedings to be open to the public, an approach very seldom seen in labor cases.
“It would be very rare for a labor arbitration to be open to the public;” McCormick said. “unless the NFL wants it to be opened to the public it won’t be public. My strong suspicion is that if a motion is made in that regard that the NFL will probably object and the arbitrator would very likely grant the NFL’s objection.”
If Kaepernick was indeed able to win his case, the ramifications could be dramatic for the NFL. If Kaepernick wins, the NFL Players Association has grounds to repeal the old CBA and has increased leverage in the new negotiations. However, while the benefits for players around the league is clear, the actual remedy for Kaepernick is much more complicated.
“If he wins then the league will appeal to the US Court of Appeals,” McCormick said. “The Court of Appeals will then determine if the arbitrator abused their discretion, however arbitrators are given broad authority over these cases. As to the remedy (for Kaepernick) that is tricky, there would be money damages but beyond that I don’t know.”
On the other hand if Kaepernick loses this case his chances receiving any remedy from the NFL dwindle drastically. McCormick says there are very few legal options should he lose his case.
“If he loses the only other thing he could do that I can think of is to file an antitrust lawsuit. But if he loses this case the chances of him trying to recover damages are very small.”