Credit: Ethan Wu

A Penn Law professor is presiding over an internal collusion lawsuit between the National Football League and former starting quarterback Colin Kaepernick.

Law professor Stephen B. Burbank

On Oct. 15, Kaepernick filed a grievance through the Collective Bargaining Agreement against the NFL alleging that the owners of the league “entered into an enforced, implied and/or express agreements to specifically deprive” him from another job for which he was "eminently qualified." 

Kaepernick, who began playing as the starting quarterback for the San Francisco 49ers in 2012, became a free agent in 2017. The prior year, he had made headlines by protesting national police brutality by remaining seated and kneeling during the national anthem. 

His actions attracted national attention prompting similar protests from other players as well as wide spread criticism, including that of President Donald Trump. 

"The owners of Respondent NFL Teams have been quoted describing their communications with President Trump, who has been an organizing force in the collusion among team owners in their conduct towards Mr. Kaepernick and other NFL players," Kaepernick's grievance letter read. "Owners have described the Trump Administration as causing paradigm shifts in their views toward NFL players."

Stephen B. Burbank has a history of dealing with issues similar to these. He served first as the special master for the NFL from 2002 until 2011 when he became the league's system arbitrator, a role he has held ever since. He has presided over many high-profile disputes throughout his tenure including cases concerning salary caps and player contracts. 

“The issues that I have exclusive jurisdiction over relate to things like freedom of movement of players, free agency, collusion, things like that,” he said. “So they are systemic issues to be distinguished from issues that relate to injured players or other grievances.”

In 2016, Burbank issued a ruling on a case finding that the league had mischaracterized and withheld funds totaling roughly $120 million from players. 

According to Ben Meiselas, one of the three attorneys representing Kaepernick, proving collusion does not require proof of some explicit document, but a demonstration of a pattern that two or more NFL teams, or one or more teams and the NFL itself, had an agreement to limit his employment options.

Burbank said he could not comment on the ongoing litigation. 

Meiselas indicated that Burbank has granted investigators access to electronic communications, including emails and text messages, involving several teams that were linked to Kaepernick. He added that his firm is now in the process of deposing various NFL administrators.

"My review of the documents makes me a pessimist of people being good and doing the right thing," he said. "Though I am extra confident after reviewing the records that Mr. Kaepernick is going to get justice through these proceedings. It reflects a very nasty time period that we live in."

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