What your view of sports and life would be if you had too many concussions
Editor’s Note: While he has appeared on Dubsism before, this is Small Town Pizza Lawyer’s initial guest column. He will be appearing from time to time to offer insights on the complex matters which intertwine the legal world and sports.
Now I may be just a small town pizza lawyer, but at least I know the difference between a case being handled in binding arbitration and actual civil litigation. J-Dub pointed me toward an article published by Yahoo Sports regarding Colin Kaepernick’s collusion case against the National Football League. While reading this thing, it became obvious to me the Yahoo people don’t understand this distinction and the entire concept of dispute resolution. I can show that to you by walking through that article.
The NFL is attempting to force Colin Kaepernick’s collusion case against the league to a close, sources familiar with the proceedings have told Yahoo Sports.
I know J-Dub gets more annoyed than a porcupine with a hemorrhoid at the idea of unnamed sources, but the fact Yahoo uses one for this story is the first indicator of the difference between arbitration and an actual court case. Unless a judge orders records to not be made public, anybody can head down to the court house and see the documents from a court case for themselves. Arbitration has no such transparency. That’s because the whole point of arbitration is to avoid court. Arbitration is all about both sides agreeing upfront not to show the whole world “how the sausage gets made.” This is why the agreement to resolve disputes through arbitration is boiler-plate language in most collective bargaining agreements. The current deal between the NFL and the NFL Player’s Association is no exception.
But my favorite part of that first sentence is about the NFL trying to force this case to a close. Well, no shit, Sherlock. They are trying to win.
Citing a subsection of Article 17 – the portion of the collective-bargaining agreement that deals with collusion cases – the NFL has requested that arbitrator Stephen Burbank provide a summary judgement in the case, sources said.
Now, a summary judgement can happen in both arbitration and “real” court, and the idea is actually pretty simple. If you think of playing poker, filing a motion for a summary judgement is basically calling a bluff. Whether it’s arbitration or a civil suit, a summary judgement means the plaintiff has to “show their cards” to the judge/arbitrator, who then decides if the case has any merit.
The request puts the future of the case in the hands of Burbank, who now must determine whether Kaepernick’s legal team has uncovered sufficient evidence to continue the quarterback’s action against the league. If Burbank rules Kaepernick’s attorneys have found evidence to move toward a hearing, the case will continue, possibly with additional depositions. If he finds that the current discovery evidence is insufficient to advance, he can dismiss the case in favor of the NFL.
The people at Yahoo act like this is a new development, when in fact a motion for a summary judgement is as common as ordering pepperoni with extra cheese. On top of that, they seem shocked at the idea the arbitrator can make this case disappear with the stroke of a pen.
In no uncertain terms, the request is the most pivotal moment in the nearly nine months of discovery and depositions between the former San Francisco 49ers quarterback and the NFL. With the league’s request for summary judgement, Kaepernick’s legal team will now have to file an argument with discovery or deposition material that supports the case continuing.
Again, no shit, Sherlock. It’s most pivotal moment so far because it’s the ONLY moment so far. Nine months of collecting depositions means about as much as an expired pizza coupon because depositions are meaningless until they are entered into evidence. For another poker reference, you can bluff all you want, but at some point you’ve got to show your cards. That’s the gamble for a defendant moving for a summary judgement. If the plaintiff has the cards, the judge/arbitrator may believe the defendant has something to hide. That isn’t good.
That’s why when a defendant makes such a motion, they are pretty sure they are going to win. On top of that, it forces the plaintiff to walk a tightrope. On the one hand, they have to show enough cards to let the judge/arbitrator keep the case going, but they don’t want to show everything they have so as to not let the defense know what’s coming.
According to Article 17 in the CBA, the argument will need to show evidence “sufficient to raise a genuine issue of material fact capable of satisfying” Kaepernick’s collusion allegation.
The problem here is that we have too many people in this country who either don’t understand how due process works, or think they didn’t get it if the decision doesn’t go their way. I know that breaking articles like this down in this way leads to things being taken out of context, but if you read the original article, it doesn’t take much to see the Yahoo folks seem to think Kaepernick’s claim has merit. Obviously, they have no way of knowing from a legal standpoint because they don’t get to see whatever cards Team Kaepernick will provide to the arbitrator.
That begs the question…if they have no factual, legal way of knowing the merits of Kaepernick’s case, then are they so disturbed by the idea this case is very close to a silent death?
It’s unclear what impact Burbank’s decision could have on an attempt by Kaepernick’s legal team to pursue subpoenas of President Donald Trump and/or others in his administration. That push was expected in the coming weeks, but would seemingly be struck down if Burbank halts the collusion case altogether.
There it is. This all comes down to some anti-Trump nonsense…politics notwithstanding, it’s nonsense. Again, from a strictly procedural standpoint, what we are talking about is a labor dispute between two parties contractually obligated to a resolution as determined by a mutually-agreed upon arbitrator. That matters in this case because it’s very difficult to compel entities outside of the contractually obliged into the proceedings. In other words, if they think they can get depositions out of anybody they wish, let alone a sitting President of the United States, they’re not dealing in reality. Even if they could compel President Trump into a deposition, what realistically do they think they are going to get out of him?
The reality is this. Collusion is extremely difficult to prove, because to do so means you need to get the people you are accusing to give you the evidence they did it, admit they did it or both. That means if you are somebody who is putting a political assignation into what is little more than a long-shot labor beef, you better prepare yourself for a loss.