Why Colin Kaepernick’s Win Against The NFL Is Only The Beginning Of A Tough Road Ahead

Former NFL quarterback Colin Kaepernick won a vital motion in his fight against the league based on a claim of collusion. On August 28, the arbitrator assigned to the case denied the NFL’s motion to dismiss the grievance.

The ruling was released on August 30. Kaepernick’s seven-page grievance was filed almost a year ago — on October 15, 2017.

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),” stated the arbitrator.

It is not surprising that Kaepernick was able to move past the motion to dismiss phase of his grievance. Such grievances are rarely dismissed and arbitrators will almost always allow a dispute to move on to a final hearing in the absence of a negotiated settlement.

While Colin Kaepernick scored a victory at the motion to dismiss phase, he has a long way to go before claiming victory.

That said, Kaepernick still faces an uphill battle in proving that NFL teams colluded to keep him off any NFL team roster, as I wrote in a recently published Harvard Law School Journal of Sports & Entertainment Law note titled, “What if Kaepernick is Correct?: A Look at the Collusion Criteria in Professional Sports.”

The Anti-Collusion Provision in the current NFL/NFLPA Collective Bargaining Agreement puts the burden on Kaepernick to still prove “by a clear preponderance of the evidence” that NFL teams colluded against him and that such collusion resulted in economic injury. In civil litigation, the burden is typically on the plaintiff to show mere preponderance of the evidence; clear preponderance of the evidence is a heightened standard.

Preponderance of the evidence, itself, would require Kaepernick to convince an arbitrator that he tipped the scales in favor of his position over that of the NFL. The NFL Collective Bargaining Agreement’s standard is heightened.

“It suggests that the grievant needs to prove more than the preponderance of the evidence, but less than beyond a reasonable doubt, which is the adopted criminal standard in the U.S.,” as I wrote in the Harvard Law note.

The above referenced Anti-Collusion Provision also puts the onus on Kaepernick to clearly show that at least two NFL teams entered into an agreement to deny him an opportunity to play in the NFL. He needs to demonstrate more than a mere belief that he was a victim of collusion.

If Colin Kaepernick pulls out an overall win, then NFL teams will have to pay up.

If Kaepernick is able to convince the arbitrator that he should prevail, then he may be awarded compensatory or non-compensatory damages. In the case that the arbitrator finds it an egregious situation, the NFLPA would be able to terminate the current Collective Bargaining Agreement.

The expectation is that there will be no settlement in advance of a final hearing and decision. Further, it is unlikely that Kaerpernick prevails despite winning at the motion to dismiss phase. If Kaepernick does not win the actual case, then he will be free to challenge the ruling in federal court; however, courts are very reluctant to overturn decisions handed down by arbitrators.