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Kapernick's Collusion Claim Against The NFL Survives Motion For Summary Judgement

Everyone knows about the controversy Kapernick started as a result of kneeling during the national anthem.  He is claiming that this controversy led teams to collude against hiring him.  To be clear, an individual team can indeed not hire him due to their distaste of his actions.  However, they are not allowed to collude together against him.  In other words, the NFL owners can’t secretly agree to not retain Kapernick.

Just recently, Colin Kapernick prevailed against the NFL’s motion for summary judgement.  However, that is not an indication that he will win the case.  It simply means that the judge is allowing it to go forward to an arbitration hearing because Kapernick has at least shown a genuine issue of material fact to address at the hearing.  Under Article 17 of the collective bargaining agreement, the standard for granting summary judgement is much different than the standard to win the actual hearing.  At the hearing, Kapernick will have to prove his case and damages by a clear preponderance of the evidence.  At the summary judgement stage, Kapernick had to simply show that there was a genuine issue of material fact.  Also, judges in Kansas at least, look at a motion for summary judgement in a light most favorable to the nonmoving party.

However, the fact that Kapernick has prevailed against the summary judgement motion does greatly boost his position.  The NFL may be much more willing to settle at this point.  In my experience as an attorney, typically during a lawsuit, the defense isn’t willing to even reasonably discuss settlement unless they lose their motion to dismiss and then lose their motion for summary judgement.

At trial, Kapernick will need to show that he was damaged as a result of two or more teams colluding together against him to deprive him of his collective bargaining rights.

While there won’t be an actual formal trial or jury, the hearing will be on the full merits.  Therefore, the NFL could be forced to disclose sensitive information like internal documents abut the anthem situation, their interaction with EA Sports regarding Madden 19 taking out any references to Kapernick, and etc.  The NFL does not want to do this, which could put pressure on them to settle.  Kapernick will try to put pressure on the owners and gain all kinds of information against them.  In addition, Kapernick is trying to bring President Trump into the case by claiming it is Trump statements that have caused the teams to collude.  Without a doubt, President Trump statements have impacted the league and fans.  However, he is a third part, and his actions cannot be collusion.  Whether or not the President’s actions overstep his appropriate role as president or etc. is another question entirely.  Kapernick will likely try to call President Trump as a witness at the hearing, but President Trump’s lawyer will surely try to avoid that by attempting to quash any subpoenas.

Due to the pressures or discovery and required disclosures, the NFL surely wants to resolve this.  However, Kapernick may be more interested in having a hearing and getting the evidence instead of settling.  Furthermore, in addition to money, as part of a settlement Kapernick may desire that the NFL openly endorse and allow players to kneel, protest, or show any kind of disrespect they choose to during the anthem.

The future ruling of the arbitrator will likely stand.  The losing party can appeal the decision by filing a lawsuit in the U.S. Federal District Court.  However, arbitration clauses are usually favored and upheld in court.  The courts have in fact upheld arbitration in other past disputes between players and the NFL.

In addition to Kapernick’s individual collusion claim, if during the arbitration hearing the arbitrator finds that more than 13 teams were involved in collusion, then the NFLPA could cancel the collective bargaining agreement.  Whether they would actually do that is questionable as it would lead to a labor crisis which would hurt both the NFL and the players.  Furthermore, even if the NFLPA chose to cancel the agreement, much of the salary cap rules and etc., would likely remain intact.  This is because while antitrust and American labor laws disfavor rules that prevent open and free competition for wages, it provides exemptions for working conditions if it reflects good-faith bargaining of the union and management.

In any event, Kaepernick’s lawsuit is hurting the overall NFL brand, thus hurting players financially across the board.  The NFL is in a tough place regarding the case and their stance regarding the national anthem.  On one hand, they don’t want to isolate their viewers, many ow whom do not appreciate pampered millionaires spitting on the flag.  But they also want to support their players as well as some viewers who support the protests.  The NFL has been riding the fence, but one would think that they need to finally address it one way or another.