In a major blow to the NFL, Colin Kaepernick achieved a preliminary but important win in his case accusing the league of colluding to keep him off the field because of the player protests during the national anthem that he instigated.
The ruling, essentially granting a full hearing on the dispute, keeps alive a case the NFL desperately wanted to go away. The league is preparing for a new season beginning next week and is still grappling with how to defuse the smoldering debate over players who demonstrate during the national anthem to protest racism, police brutality and social injustice.
Although the number of players who kneel has varied — and dwindled over the course of last season — since Kaepernick first did so in 2016, during a wave of police shootings of African-American men, the issue continues to divide fans, vex owners. It has also inspired persistent tweets from President Donald Trump, whose calls for players who kneel to be fired has put pressure on owners, many of whom support the president.
Kaepernick, once one of the league’s best quarterbacks, has been out of work since March 2017, when he became a free agent before the San Francisco 49ers could release him. As a parade of lesser quarterbacks, at least statistically, found work, he filed a grievance asserting the league’s owners had conspired to keep him out because of his protests.
In a ruling this week that was disclosed Thursday, the arbitrator, Stephen B. Burbank, who was appointed by the league and the NFL Players Association, said lawyers for Kaepernick had unearthed enough information in the past year for the case to proceed to a full hearing. After months of depositions — including those given by some of the most powerful owners in the league — as well as document searches, the lawyers will be able to question league officials, owners and others in a trial-like format.
The decision was revealed by Mark Geragos, Kaepernick’s lawyer.
The NFL, which had asked the arbitrator to dismiss the case for lack of evidence, declined to comment. It cannot appeal the arbitrator’s decision to move to a full hearing, but it can appeal a final ruling.
A hearing could begin by the end of the year, though the two sides could settle the case before then. Kaepernick is seeking damages equal to what he would have earned if he were still playing in the league.
The case has attracted so much attention, experts said, that it would have been difficult for Burbank to dismiss it.
“Politically, if you’re the arbitrator, in a case as big as this is, there’s no way to throw it out,” said Charles Grantham, a former executive with the National Basketball Players Association who is now the director of the Center for Sport Management at Seton Hall University. “We knew that, as soon as Donald Trump put his fingerprints on the issue.”
Fearing a backlash from fans angered by the protests, the league tightened its anthem policy in May to force players to stand during the playing of the song, instead of just suggesting they stand. But the NFL decided not to enforce the policy while league executives and the players’ union discussed whether or how to proceed.
“Many people might think this case is about the anthem and not about collusion,” said Michael LeRoy, who teaches at the School of Labor and Employment Relations at the University of Illinois at Urbana-Champaign. “It has now become a benchmark measure of whether you support Trump or do not support Trump.”
Arbitrators often allow cases to proceed to a hearing, and in this case, Kaepernick’s lawyers showed that “there was some genuine disputed issue regarding the existence of collusion,” said Gabe Feldman, a law professor at Tulane University.
Yet cases alleging that sports leagues colluded are often difficult to win because there is rarely a smoking gun document or directive instructing owners to act in a coordinated way against a player or players, Feldman said, and personnel decisions can be highly subjective.
One notable exception came in the late 1980s, when Major League Baseball was roiled by several cases brought by the players and their union accusing team owners of trying to keep down salaries. The cases ended in a settlement worth $280 million.
The bar may be higher for Kaepernick, said William Gould, who was chairman of the National Labor Relations Board and oversaw the MLB strike in 1994.
“It’s an uphill battle,” Gould said. Still, the decision Thursday “does put pressure on the NFL because it does allow Kaepernick to do more discovery, question witnesses, and present this full case in front of the arbitrator.”
Kaepernick filed a grievance against the NFL in October accusing the owners of conspiring to not offer him a new contract because of his decision to protest during the playing of the national anthem, which began in August 2016.
Since becoming a free agent, Kaepernick has talked to some teams but has not been invited to work out with them, and he has not been offered a new contract. Some team officials have quietly suggested that Kaepernick’s best years are behind him, while others said they did not want to sign him to serve as a backup. Kaepernick, who is now 30, played six years with the 49ers and led them to the Super Bowl in his second season.
John Elway, the former Denver Broncos quarterback who is now the team’s general manager, muddied the waters further when he told NFL Network that he did not sign Kaepernick because the player had once been offered a contract and turned it down.
Elway did not say explicitly that he shunned Kaepernick because he protested during the anthem. But Kaepernick’s lawyers contend that the quarterback was still talented enough to play in the NFL, and that he was willing to be a backup.
During discovery, Kaepernick’s lawyers have requested hundreds of pages of documents from the league office and teams. It has also questioned, in closed-door sessions, owners of the Dallas Cowboys, the New England Patriots — whose owners are among the most influential in the league, and friendly with the president — and several other teams, as well as league officials including Commissioner Roger Goodell and Troy Vincent, the executive vice president for football operations.
If Kaepernick wins his case in a full hearing, he would be eligible to receive the money he might have received if he were signed as a free agent. The damages would be tripled.
Eric Reid, who was one of the first players to protest with Kaepernick when both of them were on the 49ers, has also filed a grievance against the league. Reid became a free agent this offseason, and though he is considered one of the best safeties on the market, he has yet to be signed by a team.