Free agent quarterback Colin Kaepernick formally filed a petition this weekend, claiming the NFL has committed collusion to keep him out of the league. He hired noted attorney Mark Geragos, and the petition is now public. You can read it down below at the end of the article, or check it out here.
I am still doing some research on the grievance process, but I have some initial thoughts on the arbitration petition. If you read through it, there is no “smoking gun” that might show owners or executives working together to keep Kaepernick out of the league. Rather, it focuses on the confluence of events we have seen and talked about. Teams have worked out and signed inferior quarterbacks, and Donald Trump made his very public statements about how players should be punished for kneeling. All of that could be viewed as evidence that something is amiss, but none of it on its own proves collusion on its own.
SI legal analyst Michael McCann had a great article breaking down the case for and against collusion. For example, if Kaepernick turned down a team’s offer, that would not disprove collusion. Other teams could be colluding. On the other hand, a single owner talking to Donald Trump, as we saw with Jerry Jones, does not prove collusion. Collusion would involve NFL owners and executives. Donald Trump is not one, and so he does not factor into this in that regard. If multiple owners discussed Kaepernick through Trump, that would be different.
The arbitration process is laid out in Article 15 of the CBA, and provides for a neutral arbitrator agreed to by the NFL and NFLPA. This is different from the personal conduct suspension process, where Roger Goodell is the arbitrator of his own decisions.
The losing party in the arbitration hearing is allowed to appeal the decision to federal district court. However, courts grant broad deference to arbitration decisions. The idea is that the two sides negotiated this process, and with a neutral arbitrator, it would be even more so.
That being said, the big question is when this gets to the discovery process. Discovery involves looking at anything that might potentially lead to evidence. That can include emails, letters, voice mails, depositions, or anything that could reasonably be calculated to lead to the discovery of admissible evidence. Discovery can be huge in a legal proceeding, given that you can search through a lot of content to try and find evidence. However, the NFL’s process would be able to limit it because of the lack of subpoena power.
My guess is Kaepernick will lose the arbitration, and will be denied an appeal because of the deference to arbitrators. However, if he thinks his career in the NFL is done at this point, I would say there is not much to lose in giving this a go. If he wins, he could receive triple damages between compensatory and punitive damages. Again, his chances of winning are low without any mentioned smoking gun, but it appears to be the proverbial hail mary at the end of the ball game.