Here's why Colin Kaepernick’s lawyer thinks Brian Flores can cut a legal path to victory vs. the NFL

For roughly 16 months, Colin Kaepernick’s legal team at Geragos & Geragos went toe to toe with the NFL in a grievance process that remains completely shrouded to this day. Discovery was performed. High-ranking depositions were recorded. Arbitration hearings were convened.

Finally, it ended in a settlement agreement in February of 2019. Three years later, everything dug up in that process remains locked away under a confidentiality agreement struck between the league and Kaepernick.

Few disputes better illustrate why the NFL is expected to seek to move a class-action lawsuit filed by ex-Miami Dolphins coach Brian Flores out of the Manhattan federal court system and into the league’s arbitration process. Because it creates the opportunity to conceal a potentially nasty legal battle behind a firewall of privacy that's impossible to penetrate without someone violating the confidentiality of the process. And should the league feel compelled to settle the dispute as it did in Kaepernick’s case, whatever transpired inside the discovery, deposition and hearing processes can be tucked away forever.

Kaepernick’s attorney, Ben Meiselas — who also hosts the rising political podcast “The MeidasTouch” — knows this better than anyone. He played a central role in the quarterback’s collusion case against the league. Since that case was settled, he won’t (or can’t) speak about the details.

He can, however, chime in on the Flores lawsuit, particularly the portion that painted Kaepernick as a player “blackballed” by the league. It's a significant statement brought to the table by a coach who at one point appeared to be in need of Kaepernick’s services, but never saw his team make an overture. Flores is also a coach who should know specifically why Miami never showed interest.

“He devoted two pages to speaking about Colin in his official capacity as a coach, to say that Colin Kaepernick is a starting quarterback who deserved to be in the league,” Meiselas said. “What I’m intrigued to learn is, what steps did Brian Flores take within the Dolphins organization during the last three years to bring Kaepernick to the team? That’s an omission that I’m personally noting and it’s a question I’d want answered.”

The Kaepernick question aside, Meiselas said the Flores litigation has a path to victory against the NFL. But it comes with a significant number of hurdles. Chief among them: fighting off the league’s expected attempt to move the case from federal court into a private arena, where the scope of discovery can be dramatically curbed and arbitrators often favor the NFL.

“Brian Flores has a great legal team,” Meiselas said. “These are experienced class-action lawyers who are battle-tested, sophisticated and very sharp. They’re trial lawyers. I think he’s got a good team ready, and I think that’s going to be important for navigating all the issues that are going to arise with this case.”

“The first thing that needs to be navigated is the arbitration provision [in Flores’ coaching contract]. A typical arbitration provision, when you bring a grievance against the team, has the NFL commissioner involved in the dispute resolution process. It’s a private tribunal with its own set of rules. Getting around the arbitration clause is going to be a procedural barrier.”

Former Cleveland Browns head coach Hue Jackson recently illustrated how private that process can be. While drawing similarities to his firing in Cleveland to Flores’ ouster in Miami, Jackson revealed that he previously filed a wide-ranging fraud grievance against the Browns following his firing in 2018. Per the same provision in Flores’ contract — which is believed to be standardized in every NFL coaching agreement — Jackson’s dispute was handled inside the league’s private arbitration system. An arbitrator ultimately ruled against Jackson’s claims.

Prior to this month, very few in the league were aware that Jackson had even filed a fraud grievance. Indeed, even some senior-level employees inside the Browns organization weren’t aware of it until now. And even today, the specific allegations and details of how the judgment was reached remain concealed by the private nature of the league’s arbitration process.

That type of outcome, losing an arbitration case and having the process and information shielded from public view, is part of why Meiselas sees arbitration avoidance as the first legal mountain for Flores to climb.

“It’s one of the reasons I think it was planned as a class-action suit,” Meiselas said. “Because the class action can try to get around an arbitration agreement, basically by saying, ‘Brian Flores isn’t subject to individual employment disputes. He’s serving as a class representative of similarly situated coaches experiencing systemic discriminatory conduct that is outside the bounds of an individual employment contract.’ There are also a few other arguments you could make as well.”

One thing Meiselas made clear: This is likely to be a long and drawn-out legal action, with a significant number of twists and turns. Including multiple attacks by the NFL to win an outright dismissal before it’s all over. The journey could lead to any number of outcomes, from Flores’ litigation getting bounced out of federal court and into the league’s arbitration system, to the NFL being taken to a jury trial in federal court — or the two parties meeting in the middle and striking a settlement at any juncture.

Whatever the outcome is, Meiselas said something has already been accomplished by Flores where it concerns the public spotlight and pressure on the NFL.

“The complaint was an incredibly powerful, compelling legal document and narrative that has already achieved a great deal of success,” he said. “It has already moved the conversation around the hiring practices involving Black coaches to the forefront. It has made it an undeniable subject and has shed an important spotlight on it. A lot has already been achieved in a short part of time.”