In a landmark ruling that substantially alters the complexion of the collusion grievance brought by Colin Kaepernick, arbitrator Stephen Burbank has denied the NFL’s request for summary judgment. Burbank’s ruling means that, absent a negotiated settlement between Kaepernick & the NFL, Kaepernick’s grievance will proceed to a trial-like hearing before Burbank later this year. Burbank’s ruling also indicates that all 32 teams remain parties in the grievance. This is a subtle but potentially groundbreaking point since if Burbank finds that 14 or more teams engaged in collusion, the NFLPA could acquire the option of terminating the collective bargaining agreement.
The technical reason for Burbank’s ruling is that the NFL & its teams failed to convince Burbank, a law professor at the U. of Penn. Law School, that they had met the necessary standard for summary judgment. Under Article 17 of the CBA, Burbank would have granted summary judgment if Kaepernick hadn’t shown enough evidence sufficient to raise a genuine issue of material fact.
The “genuine issue” is whether the 30-year-old Kaepernick has been victimized by collusion, which in this context refers to two or more teams, or the league & at least one team, conspiring to deprive Kaepernick of his collectively bargained right to sign with a team. Kaepernick, who earlier in his career led the 49ers to a division championship & a Super Bowl appearance, contends that teams have conspired to keep him out of the NFL. They have allegedly done so on account of the controversy surrounding his kneeling during the playing of the national anthem.
A key element of Kaepernick’s argument is that owners are fearful about the capacity & the willingness of President Donald Trump—an ardent critic of Kaepernick & of other players who kneel during the anthem—to damage the league’s business and legal interests. Such a concern was documented in audio recordings of owners during an October 2017 meeting that centered on Kaepernick & the national anthem.