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Crucial hearing in Colin Kaepernick's grievance vs. NFL begins

·NFL columnist
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In the most pivotal moment to date in Colin Kaepernick’s collusion case against the NFL, lawyers representing the league and the former San Francisco 49ers quarterback will meet before arbitrator Stephen Burbank on Thursday to determine if the complaint will go forward.

The hearing is taking place in response to the NFL’s request for summary judgement. The league alleges that Kaepernick’s legal team hasn’t reached the standard to prove collusion. If Burbank sides with the NFL, ruling that Kaepernick hasn’t met the burden of proof set forth by the collective bargaining agreement, it’s likely that his grievance will be dismissed.

If Burbank sides with Kaepernick, it would effectively mean the case will move forward, eventually resulting in a hearing of the evidence culled by each side during the past 10 months of discovery and depositions.

Why did the NFL seek this judgement?

This pivot point was brought about by the NFL, which seized upon a part of the CBA that allows the league to request a summary judgement to a collusion complaint after a period of discovery has taken place. According to multiple sources who spoke with Yahoo Sports, the NFL did exactly that in May.

That request resulted in the NFL’s lawyers shooting off a cannon fire of legal paperwork to Burbank, ultimately seeking to lay out two key assertions to the arbitrator: First, the NFL wants to set the standard of proof it believes Kaepernick needs to meet to win his case; and second, the league’s lawyers want to make it clear they don’t believe Kaepernick is anywhere near meeting that standard of proof.

Per the CBA, Kaepernick’s camp had to respond to the league’s argument, essentially making its own case for why the complaint should continue.

Those two opposing arguments set the stage for Thursday’s hearing.

Colin Kaepernick, giving a speech after receiving the Amnesty International Ambassador of Conscience Award in April, is accusing the NFL of collusion. (AP)
Colin Kaepernick, giving a speech after receiving the Amnesty International Ambassador of Conscience Award in April, is accusing the NFL of collusion. (AP)

The request for summary judgement is a powerful tool at the NFL’s disposal. Partly because it gives the league a chance to end collusion cases quickly, but also because it gives the league’s lawyers an inside look at their footing in a case. And it will do exactly that in the Kaepernick case, effectively forcing him to reveal his plan of attack.

Even if Burbank ultimately allows the case to move forward after Thursday, the league will have gained the advantage of knowing the key points of Kaepernick’s arguments and a sizable portion of the evidence his legal team is relying upon. The flip side: If Burbank sides with Kaepernick, his legal team will have gained the knowledge of how the NFL plans to argue its case in the final stage of the process.

What will it mean if Kaepernick wins or loses this judgement

If Kaepernick wins the judgement Thursday, it will be significant. It will be a clear signal that at the very least, Burbank sees smoke where Kaepernick’s team is alleging fire. And it could also create a situation where Kaepernick’s team could press for more discovery or depositions as it seeks to prove its case.

From the opposite vantage, if the NFL wins, it effectively ends the collective bargaining portion of the Kaepernick saga. That would give the league a significant (and most like winning) foundation going forward if Kaepernick chose to press his case in federal court, with the NFL arguing that the CBA’s mechanism for sorting out the complaint had already come to a decision. The NFL could then argue that federal courts can’t interfere with an arbitration decision in a system that was collectively bargained by the league in the union. This is the type of argument that ended the fight between Dallas Cowboys running back Ezekiel Elliott and the NFL.

President Donald Trump could still loom in another legal setting

What an arbitration decision doesn’t guarantee is that Kaepernick won’t pursue a federal lawsuit against President Donald Trump. A key component of Kaepernick’s collusion complaint has been that Trump influenced team owners to keep him out of the NFL. Even if an arbitrator doesn’t side with Kaepernick, the quarterback and his legal team could still believe they have the necessary evidence to take Trump to court.

It’s clear that Kaepernick’s collusion case has consistently focused on Trump throughout the process – both from the list of owners called for depositions (all of whom have some level of ties to Trump) and some of the testimony that has become public. Interestingly, a federal suit against Trump could become more problematic for the NFL, as depositions and other materials under seal in the collusion case could be drawn in as evidence and eventually made public.

For now, such a plan would be a far-off affair and likely a last-ditch effort. One that may not be required after Thursday. And that’s part of what makes the hearing before Burbank so pivotal.

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