Thursday’s ruling in embattled quarterback Colin Kaepernick’s long fight against the NFL to prove he was blackballed has taken a turn in favor of the former 49ers thrower. As SB Nation’s Ryan Nanni described in his analysis of the ruling: “Under Article 17, Section 7 of the current collective bargaining agreement, the appointed arbitrator in an anti-collusion matter may “determine whether or not the complainant’s evidence is sufficient to raise a genuine issue of material fact” and dismiss the case if the evidence is insufficient.”
It has been two years since Kaepernick enacted a radical protest on the sidelines that unraveled the normalcy surrounding NFL Sundays. Players followed with similar fervor, dropping to a knee to protest the injustices continuing against people of color.
Kaepernick’s moment evolved to a movement. The NFL’s issue stretched to each American pro league. And after a season in the sun, the Pro-Bowl quarterback couldn’t find another team willing to pay him.
Since then, Kaepernick hired famed California lawyer Mark Geragos to represent him in the collusion lawsuit that, according to prominent Los-Angeles based sports and entertainment attorney Jaia Thomas, got a “major win” on Thursday.
I called Thomas to have her break down the case. Thomas has more than 10 years of experience practicing, specializing in transactional and intellectual property matters, and is an adjunct professor at UCLA, and focuses on the intersection of race and sports.
Thomas was certain of one thing, “However this case turns out is going to set a precedent,” for the NFL moving forward and how their players draw up litigation in the future.
This interview has been lightly condensed and edited for clarity.
SBN: So basically, from my understanding, the NFL lost a summary judgment against Kaepernick that sought to have his case dismissed. With this phase over, what do you make of that?
Thomas: The arbitrator, as you mentioned, denied the NFL’s motion to dismiss this case altogether. What that means, more or less, is that Kaepernick has enough evidence. He’s been able to present enough evidence that there’s actually a case to move forward on and his claims aren’t flimsy. There’s actually substance behind the complaint.
SBN: Is this a win for Colin Kaepernick after this long process where we aren’t even to the crux of the trial?
Thomas: It’s definitely a win. In between when he first brought the complaint and now, there’s been a deposing of many different people, finding evidence, doing research, there’s been a lot of work taking place between now and then. It’s definitely a win for him. It definitely proves that he has enough to move forward with the case. I personally think there’s a good chance the NFL ends up settling before they go completely forward with this later this year.
SBN: What’s the decision actually mean, though? He didn’t dismiss the collusion case as the NFL requested. So does that mean there’s smoke here? Maybe, if you are someone on the side of Kaepernick, does it mean that there’s potential to think he was legally blackballed by the NFL?
Thomas: Correct. Right. The whole case is based on collusion which is prohibited in the NFL and by the arbitrator ruling that the case will not be dismissed that means there’s definitely more than enough evidence and substance to move forward with it. It’s 100 percent a win for Colin.
SBN: Well, how can we quantify this win? Is this a major win to this point, or a small level win?
Thomas: I’d have to say it’s a major win.
SBN: Why is that?
Thomas: Obviously there’s something, he has enough there to move forward. I just think that between now and when the final trial, for lack of a better word, takes place, he will be able to produce even more evidence between now and then.
SBN: So what has to happen next in this process?
Thomas: Over the next couple of months, Colin’s legal team is going to continue deposing different people, deposing different individuals associated with the case, collecting evidence, testimonies, things along those lines to really prove the case. Then, once the date is actually set for the hearing, it’s almost going to be like a trial.
Arbitration isn’t like a courtroom trial completely. There’s a couple differences between the two. More or less, once the trial begins they are going to be calling different people to testify.
So between now and then, which they are expecting to be later this year, they’re going to continue collecting evidence, deposing people and just getting everything ready for the final presentation of everything they’ve collected this year.
SBN: If the NFL was to settle, does that mean they’ve basically admitted guilt or that they felt like they could not win in this situation?
Thomas: It doesn’t necessarily mean they are admitting guilt. They just may want to make it all go away. Also, they may just want to save money. The process and the amount of money that they may have to spend depending this collusion claim may end up being an astronomical amount to the point that it may be cheaper for them to settle. That may be the reason why as well. But, no, just because they settle doesn’t mean they are admitting guilt. There could be a myriad of other reasons.
SBN: Speaking of money, what about Kaepernick in this case? The NFL is a billion-dollar organization that, if weighed and measured, would be a top Fortune 500 company. If that’s the truth for their side, for a man who hasn’t played in months, his legal fees could get worse, right?
Thomas: With his legal fees, there could be a contingency fee. Which means that, we don’t know what he worked out with his attorney, but he may not be charged per hour. He could be charged, more or less, I’m gonna work for free right now but once we get this settlement amount or final judgement amount, I’ll take 5 percent of that. Or 6 percent. Colin may not be coming out of pocket right now for legal fees.
SBN: What outcomes and motivations are there for Kaepernick to continue this for this long?
Thomas: You know, I think he’s proving a point. There possibly could have been collusion among the NFL owners here to prevent him for playing after taking a knee and expressing his freedom of speech. I think he also wants to pave a way for other athletes and other players to have that freedom of speech and speak out on issues that may affect their community or may affect them directly. Hopefully, he doesn’t find justice just for himself. Hopefully it paves a way for other players in the future.
SBN: Eric Reid has also filed a collusion lawsuit with the NFL. If any positivity comes out of Kaepernick’s case, in terms of the players, how does that set up the rest of what could potentially be other lawsuits, whether that’s due to the athlete-activism moment or even things the free agent market has talked about, where free safeties have said their pay across the market was decreasing because of other players being blackballed?
Thomas: However this case turns out is going to set a precedent. Eric has the same attorney as Colin. Whatever Colin’s attorney was able to produce, there’s a pretty good chance he will be able to produce the same type of evidence on behalf of Eric. If Colin’s case completely moves forward and finds success, we can with certainty almost say the same will happen with Eric. That being said, I think the NFL will have to start re-examining and re-evaluating the ways in which they treat players and penalize them for using their free speech and right to speak up.
I’m sure you know, a few months ago, the NFL owners came down with this new rule about taking a knee. Recently, they had to put that rule on pause because they had to figure out how to make it work. It’ll be interesting to see how that rule continues to play out, you know, as NFL season gears to start up and Colin’s arbitration claim moving forward as well.
SBN: If Colin’s side, his legal team, gets a win in this through trial, they go to trial, or get a settlement, what does this mean for the actual policies enacted in the NFL, like the one you just mentioned?
Thomas: If he finds success or he settles, they’ll have to go back to the drawing board here. In my own professional opinion, either Colin will win or they’ll end up settling. I don’t think that the NFL wants to continue coming out of pocket for further lawsuits that may be coming down the pipeline. To the point, I think they are going to have to re-evaluate all of these rules in conjunction with the NFLPA [NFL Player’s Association].
SBN: It would seem that Kaepernick continuing the case is a win for at least player’s rights if they feel a need to protest in the future. No matter what, if this keeps going it’s only better for the players and horrible for the league.
Thomas: Definitely. That’s the other reason why the NFL may end up settling. They don’t want all this dirty laundry to come out. The difference between arbitration and trial is that trial is public. Arbitration is private. You and I can’t just walk into an arbitration proceeding the way we actually can in a trial in a courtroom. So some of the information will continue to be private, but, nonetheless, stuff will leak. That’s another reason I think the NFL will end up settling. They don’t want that dirty laundry exposed or anything coming to light that will further tarnish their image to what’s going on with players and especially in terms of athlete-activism.
SBN: Outside of monetary gain, outside of getting his career back, those things appear permanently lost, it appears there’s no way Colin Kaepernick can lose in this situation?
Thomas: 100 percent correct.