Dissecting the Legalese of What Happened in the Kaepernick Case


On August 30th, 2018, the attorney of controversial former San Francisco 49ers Quarterback Colin Kaepernick, Mark Geragos, tweeted out a statement related to Kaepernick’s case. If you have been living under a rock for the past few years, to sum up, Kaepernick had sued the NFL and the NFL owners for collusion, essentially claiming that during the 2017 season, teams actively “colluded” (such a nothing word anymore that essentially means conspired) to bar him from getting a job. If anyone is curious, I could break down the legal theory of which Kaepernick and his attorney are basing their claim. Suffice it to say, for Kaepernick to prove collusion, he would need to show that two or more teams, or the league office and at least one team, conspired in some way to deny him an opportunity to play in the NFL. As an update to the case, Geragos tweeted the following:

In the wake of the announcement that the NFL arbitrator denied a motion to dismiss, news organizations began running somewhat conflicting stories and headlines. NPR reported that Kaepernick had won a denial of summary judgment, stating that it was “… a landmark ruling that substantially alters the complexion of the collusion grievance, “[If] Burbank concludes that 14 or more teams colluded, the Players could acquire the option of terminating the collective bargaining agreement.” Yahoo sports reported that “Colin Kaepernick wins first head to head battle against the NFL.” ESPN ran a headline that said, “Arbitrator sends Colin Kaepernick’s grievance against NFL to trial.” For many, none of these headlines or articles seem problematic. But in the legal world, where precision of language matters immensely, none of these can be simultaneously correct.

So, what really happened last Thursday night and what does this mean for both parties moving forward?

Dismissal vs. Summary Judgement.

Typically, a defendant, in this case, the NFL, has two opportunities to get rid of a lawsuit before it goes to trial. The first is a motion to dismiss, which is filed shortly after a complaint is filed. The second is a motion for summary judgment, typically filed after discovery is completed. In the tweet sent out by Geragos, it stated that the arbitrator (who is acting as de facto judge in this case), denied a motion to dismiss.

Despite this language, many publications ran with the news that the NFL was denied a motion for summary judgment. 

Colin Kaepernick with his attorneys Mark Geragos and Ben Meislas

Seriously, why does this distinction matter if they are both early opportunities to dismiss the case? This is where the precision of language matters in understanding what happened.

Early on a defendant can file a motion to dismiss for a variety of reasons mostly procedural. The plaintiff may have filed the lawsuit in the wrong court; the court may not have jurisdiction over the plaintiff’s claims; or the plaintiff may not have served the complaint properly. Most of these reasons don’t really apply to Kaep and Geragos. But suffice it to say there are procedural rules that are managed on how civil cases (of which this is) are brought to trial. This is known as the Federal Rules of Civil Procedure (a pretty straightforward name). The reason the NFL brought a motion to dismiss can be found in Rule 12(b)(6) that details “failure to state a claim.” They essentially wanted the arbitrator to decide if what Kaepernick claims to be true, is it even a crime or is there enough illusory evidence in the pleading to suggest something bad illegal may have happened.

This Dec. 24, 2016 photo shows San Francisco 49ers quarterback Colin Kaepernick talking during a news conference after an NFL football game against the Los Angeles Rams. Kaepernick filed a grievance against the NFL on Sunday, Oct. 15, 2017 alleging that he remains unsigned as a result of collusion by owners following his protests during the national anthem. (AP Photo/Rick Scuteri)


In deciding whether to grant a motion to dismiss for not clearly stating a claim, a court generally looks only at what is contained in the “four corners” of the complaint and its attachments—such as copies of contracts in a contract case. The judge is required to look at this complaint in the light most favorable to the non-moving party.  The basic idea is that the court looks only at that initial pleading (the claim of collusion by Kaep) and determines whether or not the case can move forward. There’s no additional evidence apart from those initial claims. Basically, the judge has to determine, if all things claimed are true, is there a case to be tried by a judge or jury.

A few years back, following the aftermath of 9/11, a man named Javad Iqbal, a Pakistani cable television installer from Hicksville, New York, was arrested in New York in November 2001 on charges of conspiracy to defraud the United States and carry a fraudulent ID. It is an absolutely crazy story involving accusations of police targeting based on race and police abuse in detention. I highly suggest reading about what happened. There is a long story to this case, but what matters here is that when Iqbal sued the United States over his treatment and civil rights violations, the government moved to dismiss the case. Simply the motion to dismiss went all the way to the Supreme Court and 8 years after his initial detention in 2009, the Supreme Court ruled 5-4 that he did not raise a sufficient claim. The court said Iqbal’s allegations were conclusions and are not entitled to be assumed to be true. It was not that the allegations were unrealistic or nonsensical, the allegations in Iqbal were conclusory in nature of respondent’s allegations. Basically, they said, just because you allege something happened, doesn’t mean that is enough to go to trial and you must bring sufficient evidence to suggest something happened. Moving forward this made surviving a motion to dismiss much more difficult and required a heightened level of proof at the pleading stage.

Okay, let’s put a pin in that for a second and then come back to it.

summary j

When NPR reported that Kaepernick survived summary judgment, that wasn’t entirely true. I wouldn’t call it “Fake news” but maybe a lack of understanding of the two different terms. So let’s break down the differences. In a motion for summary judgment, the judge gets to basically evaluate all of the evidence and this motion occurs after what is called discovery. Discovery is a point in a trial where the two sides exchange necessary documents that they are using for their case. In summary judgment, the judge looks at ALL the evidence presented and simply decides whether if all the agreed-upon facts are true, would the moving party win based on what the law or contract says. If the judge agrees that the moving party would win, then they…well, win. Or more that if they go to trial, they are more than likely to win. This gives the parties a chance to settle or negotiate before going to trial or to a jury which can be costly. Knowing the potential outcome can persuade one side or the other to begin negotiations.

So, the big difference is that in a motion to dismiss, the judge examines the pleadings and claim and everything in there that may include some illusory evidence, and decides if they have done things correctly and if they have given sufficient evidence (it’s kinda unclear how much that is) to support their claim. In a summary judgment, the judge evaluates ALL of the evidence, determines agreed upon facts, and decides who would likely win.

Kaep’s Situation

Thursday night, the arbitrator (acting as judge) denied the NFL’s motion to dismiss. Basically, he ruled that if what is said on the claim is true, Kaepernick has enough in his pleading to suggest that he might have been wronged. To those supporting Kaepernick’s cause, this is a good thing and as ESPN stated, he did win his first battle. But truth be told, it is the easiest battle to win and the first of many.

San Francisco 49ers Eric Reid (35) and Colin Kaepernick (7) take a knee during the National Anthem prior to their season opener against the Los Angeles Rams during an NFL football game on Monday, Sept. 12, 2016, in Santa Clara, CA.


For those that are anti-Kaepernick, this is simply a procedural step to go to trial. More than anything, however, it is bad reporting by NPR that he survived summary judgment. The NFL, who just recently exchanged over 100,000 documents with Colin Kaepernick’s team, will most likely move for summary judgment following discovery. They may win, they may not, but it would be malpractice as an attorney to not at least attempt it if nothing else to see what the potential outcome would be.

If the judge says that Kaep is likely to win, they can head off a nasty trial and begin settling and conversely if the NFL is viewed to likely win, then that presents Kaepernick with a few other options. My assumption would be that if this were to happen, Kaepernick would bring claims with the Equal Employment Opportunity Commission, which is entrusted with guaranteeing that employees are not subject to illegal forms of discrimination. Kaepernick and the NFL player’s association could pursue remedies available through the National Labor Relations Board. Kaepernick could claim that the NFL is in violation of Section 7 of the NLRA (National Labor Relations Act) by denying him a chance to engage in a concerted activity—anthem protest. Such protest, it could be argued, would advance the union’s bargaining interests. This possibility I discussed in a previous post.

All of this to describe that what happened on Thursday is both important and also not as important for what is to come and moreover, this fight will most likely last for a long time. As we saw, Javad Iqbal’s fight lasted eight years and that was one single motion to dismiss. Kaepernick potentially has multiple claims that will need to be adjudicated. I wouldn’t describe this as an ending but more an end to the beginning.

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