By Jon Becker
The Mercury News
The NFL suffered a stunning blow Thursday when an arbitrator ruled that there is enough evidence in the grievance case of former San Francisco 49ers quarterback Colin Kaepernick to send it to a full hearing.
Arbitrator Stephen Burbank denied the NFL’s request for summary judgment and a dismissal of the case, an eye-opening ruling that allows Kaepernick’s collusion grievance against the league to continue. Burbank now will hold a full hearing, possibly before the end of the year, and issue a final ruling.
Kaepernick has been a polarizing figure since he began protesting social injustices by kneeling during the national anthem two years ago. Kaepernick’s representatives, led by celebrity attorney Mark Geragos, filed a suit against the league in October, contending that NFL teams and their owners have conspired to keep him from working in the league since he left the 49ers on March 2, 2017.
In fact, since Kaepernick opted out of his contract and became a free agent, more than 50 other quarterbacks have been signed to NFL deals, while a 30-year-old quarterback who led the 49ers to the Super Bowl five years ago has continued to wait for another chance.
49ers cornerback Richard Sherman said last year he knows why Kaepernick is still unemployed.
“What is it about?” he said. “It’s not about football or color. It’s about, ‘Boy, stay in your place.’ “
Burbank’s ruling now puts the image-conscious NFL under a bigger, more public microscope. NFL owners, coaches and executives will face more intense questioning and cross-examinations in the trial-like setting of a full arbitrator’s hearing than they did in depositions.
Some of the league’s heavy hitters already have been deposed in the case: Commissioner Roger Goodell, Dallas Cowboys owner Jerry Jones, New England Patriots owner Robert Kraft, Seattle Seahawks coach Pete Carroll and general manager John Schneider, and Baltimore Ravens coach John Harbaugh were all questioned with Kaepernick present.
Before a gag order was issued in the case, Goodell denied there was a concerted effort to keep Kaepernick sidelined.
“Those are football decisions that each team has to make and what they think are the right ways to make their football teams better,” Goodell said.
In arguing to dismiss the case, the NFL contended that Kaepernick’s attorneys had not met the burden of proof stipulated by the collective bargaining agreement between the league and its players association.
The arbitrator’s ruling did not surprise Stanford law professor William Gould, but he said it does indicate Kaepernick has a substantial case.
“You would anticipate that given the fact that there have been many depositions taken that there would be issues of fact here, which could possibly allow Kaepernick to prevail,” Gould said.
Gould added that Kaepernick’s legal team still faces real hurdles at the full hearing.
“He will have to, most likely, through trial-like proceedings meet his burden, which is to show through a preponderance of evidence that collusion exists,” Gould said. “And it’s a tough burden in a case like this because the agreement explicitly says you can’t rely simply upon the fact that other players with dissimilar qualifications were picked by clubs for the vacancies that were available.
“We know that Jay Cutler was chosen by Miami,” he added. “He was booed out of Chicago. Surely Kaepernick was preferable to him, and I think that’s the case, but that alone will not carry the day for Kaepernick.”
Kaepernick began his protests two years ago, first sitting during 49ers exhibition games and then kneeling alongside teammate Eric Reid at the Sept. 1 exhibition finale in San Diego.
That marked the start of Kaepernick’s sixth and final season with the 49ers. The previous season, he lost the starting job to Blaine Gabbert and then was sidelined with a shoulder injury that required surgery. It took him six games in 2016 to reclaim the starting job; he went on to win only one of 11 starts on a subpar team, but in that lone victory he led a comeback in Los Angeles against the Rams.
Kaepernick nearly parted from the 49ers before the 2016 season but failed to reach an agreement with the Denver Broncos. Earlier this month, when Broncos general manager John Elway was asked about courting Kaepernick again, he replied: “Colin had his chance to be here. We offered him a contract. He didn’t take it. As I said in my deposition … he’s had his chance to be here. He passed it.”
A couple of days after Kaepernick filed his collusion lawsuit this past October, 49ers CEO Jed York responded: “Obviously there’s the lawsuit going on, so it’s hard for me to get into details or really share my opinion. But I don’t believe there’s basis to that claim that he’s being blackballed.”
Although Kaepernick officially opted out of the final year of his contract in March 2017, 49ers general manager John Lynch has said the club would have released him rather than pay the $14.5 million salary he would have been owed. His teammates honored him that season with the prestigious Len Eshmont Award, given for leadership and courage.
Kaepernick reportedly hasn’t worked out for any clubs as his free agency drags into a second season of unemployment. A potential audition with the Seahawks was nixed in April when he reportedly refused to say he would no longer kneel or protest during the anthem.
Kaepernick, aside from holding Know Your Rights camps for inner-city youths, has maintained a low profile. When approached May 8 by this news organization following a workout with Reid at Cal State East Bay in Hayward, Kaepernick said: “We’re not doing interviews. We’re just here getting in a workout.”
Reid, a free-agent safety who also played for the 49ers, also has a pending collusion grievance against the NFL.
Kaepernick won 28 of 58 games as the 49ers starter, first seizing that role during the 2012 season en route to a berth in Super Bowl XLVII, where the 49ers fell to the Ravens. He was 4-2 in playoff action.
———
Mercury News staff writer Cam Inman contributed to this report.
