Barber: What Colin Kaepernick must prove in collusion suit vs. NFL

Colin Kaepernick did not compete on a level playing field in 2016. His 49ers offense was pretty terrible, frequently outmanned by the opposition.

Kaepernick’s field of play may be tilted in 2017, too. His team is strong now, probably the equal of the defense. This time, the rulebook may be what dooms the quarterback to another loss.

As you no doubt have heard, the unemployed QB and cultural lightning rod is suing the NFL and its 32 member teams, alleging collusion. He’s convinced that he has been blackballed from the league, a position that gains credence every time a quarterback struggles or gets hurt and another team turns to yet another journeyman who can’t come close to Kaepernick’s accomplishments or skill set.

To Kap’s supporters, nothing demonstrates collusion more clearly than the list of quarterbacks signed by NFL teams since the start of the season, either off the street or from the practice squad: David Fales (by Miami), Joe Callahan (Green Bay), Brandon Weeden (Tennessee), Ryan Nassib (by Jacksonville), Kyle Sloter (Minnesota). Whoever these guys are, none of them ever had a team one play away from a Super Bowl victory, as Kaepernick did following the 2012 season.

As Christopher Cameron explained, though, Turlock’s most beloved and despised son faces an uphill battle as he takes on the most powerful sports entity in America before an appointed arbitrator.

“It’s a very interesting case,” Cameron told me. “He’s got a big mountain to climb here.”

Cameron is the vice dean and Justice Marshall F. McComb professor of law at Southwestern Law School in Los Angeles. I first approached a professor at the UC Berkeley School of Law for this column. She suggested I turn to Cameron. He has a deep background in workplace law, with particular expertise in sports, and substantial experience as an arbitrator.

Representing Kaepernick against the NFL will be Mark Geragos, whose high-profile clients have included Michael Jackson, Winona Ryder and Scott Peterson.

CBS Sports’ Jason La Canfora reported Sunday that the grievance is already moving forward, and that Geragos’ team will ask arbitrator Stephen Burbank (the NFL’s “special master”) to compel team owners and top executives to turn over texts and email correspondence.

To be clear, not everything will be working against Kaepernick when the hearings start. As Cameron points out, the NFL’s collective bargaining agreement helps the quarterback in a couple ways. First, the CBA contains a specific clause that bars collusion; that’s important in professional sports, which enjoy a lot of exceptions to basic antitrust law.

Further, this case falls under Article 17 of the CBA, which means it will be arbitrated by a truly objective party. Contrast that with players appealing conduct suspensions under Article 46. Those cases are adjudicated by commissioner Roger Goodell - judge, jury and advocate, all rolled into one.

“So Kaepernick will get a fair shake, in my view,” Cameron said.

In other words, the officiating crew won’t be out to get him. But other elements of this game are stacked against the player.

Start with the fundamental nature of collusion cases. It is obvious to most of us that Colin Kaepernick is worthy of an NFL roster spot. But a hundred Brandon Weedens and Ryan Nassibs wouldn’t be enough to prove his case.

“Absent an agreement, it’s hard to prove collusion,” Cameron said. “It’s just hard to do. To be clear, the fact that no one approached Kaepernick with offers of employment, that’s not enough to create a prima facie case. It could be coincidence. So yeah, they’ll need emails, they’ll need the testimony of Kaepernick or others with personal knowledge that clubs wouldn’t sign him because they had an agreement.”

This is the crux of Kaepernick’s challenge. He must demonstrate that his unemployment is not explained by the 32 decisions of individual NFL teams; at least two of those clubs had to confer and agree not to sign him.

And since this is the sports/entertainment business, it doesn’t matter if those 32 decisions are based on factors other than playing ability.

“When you go to hire a player or an actor or a musician, you may take into account that person’s image, whether he’s a team player or not, do they get into trouble, do they have a background of arrests? You can take into account a lot of factors that you wouldn’t take into account for someone at a grocery store, stocking shelves. The courts are very reluctant to second-guess that.”

Cameron noted that an arbitrator lacks the enforcement power of a trial judge. He can’t cite witnesses for contempt or threaten to throw them in jail. That said, most of the typical rules of the discovery process will apply.

I thought that would have the NFL and its owners worried. I figured Kaepernick’s lawyers would be hoping for damning evidence on the cell phone of Seahawks coach Pete Carroll or the email server of Dolphins owner Steve Ross. But Cameron believes that if a smoking gun exists, Geragos’ team already has it.

“These aren’t strangers,” the law professor said. “These parties know one another intimately. It’s rare that management has information that either the union or players and their attorneys don’t.”

If Kaepernick does find the smoking gun, the fingerprints had better be pretty obvious. Because that’s the other card stacked against the player. In most civil court cases, the standard of proof is a simple preponderance of the evidence - as Camerson put it, “50 percent plus a thumb on the scale.”

In this procedure, the standard is “a clear preponderance of the evidence.”

“What does that mean?” Cameron wondered. “It’s not as high as ‘beyond a reasonable doubt,’ like in criminal cases. But it’s high.”

So as Kaepernick tries to move the ball uphill against this defense, it isn’t 100 yards he has to cover. It’s… what? 120? 130? No one knows but Burbank, the arbitrator.

One other note: Whoever loses this arbitration case can appeal. But don’t expect Burbank’s decision to be overturned. Cameron said federal judges are very hesitant to contradict arbitrators. He cites Steve Garvey’s suit against the Major League Baseball Players’ Association, which went all the way to the Supreme Court in 2001. The former president of the San Diego Padres had all but admitted that the team did Garvey wrong, yet the Rehnquist Court restored the arbitrator’s original decision and declined to punish the team for rescinding an offer to re-sign the first baseman after 1987.

“For all intents and purposes, the arbitrator will have the last word,” Cameron said.

The last legal word, anyway. A loss in arbitration would not silence Kaepernick or his advisors.

“Private arbitration is private, not a matter of public record,” Cameron said. “Presumably, the league and the clubs won’t talk about it. But that doesn’t prevent Kaepernick from talking about it. … In the Alex Rodriguez case (against MLB and its players’ union), he was a dead-bang loser, but that didn’t stop him from making a grandstand. He stormed out and talked to the press, accused the league of being unscrupulous.”

Kaepernick has recently signed a book deal. The collusion case will likely provide the quarterback with an additional forum. That, in itself, should trouble the NFL, which is awkwardly trying to strike a balance between the players who wish to use their celebrity to decry social injustice, and reactionary fans who think their ultimate duty is to flag and anthem.

“The longer it goes on, the less appealing this whole thing becomes (for the NFL),” Cameron said of Kaepernick’s cause. “His point is that African-American people are treated less favorably. The longer this goes on, the more it seems to prove that point.”

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