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First NFL Player To Kneel During The National Anthem Is Heading To Arbitration

AILSA CHANG, HOST:

Colin Kaepernick is going to have his day in arbitration. The NFL quarterback is still out of a job. This is despite a resume that includes leading the San Francisco 49ers to within one play of a Super Bowl title. But he was also the first player to kneel during the national anthem to protest police brutality and systemic racism. Kaepernick says that is why NFL teams have colluded to keep him off their rosters. And now an arbitrator says there is enough evidence to move forward with a full hearing of Kaepernick's case.

The decision was a big blow to the NFL and to talk about just how bad of a big blow it is, we turn now to Michael McCann. He's a legal analyst for Sports Illustrated and joins us by Skype. Welcome.

MICHAEL MCCANN: Thank you for having me.

CHANG: So what evidence does Kaepernick have that these team owners actually colluded against him to make sure he wouldn't get signed by any of them?

MCCANN: Well, we don't know what specific evidence he has because there's a protective order that bars his attorneys and also him from revealing what specific information he might have. But we do know there's something because we know that the arbitrator, Stephen Burbank, has rejected the NFL's request for summary judgment. So that means that there is a genuine issue of material fact.

CHANG: What the arbitrator is saying is he's looked at the evidence, at least preliminarily, and there's enough there to actually move forward with the case, that this should be heard. And what does Kaepernick have to prove? What evidence does he need to present to show that there was actually collusion among all these teams?

MCCANN: He has to have clear and convincing evidence that at least two teams or the league and at least one team conspired to deny him of a collectively bargained right. In this case, that right is the right to sign with the team.

So he would have to really establish with some kind of evidence. Maybe it's a witness statement. Maybe it's a text. Maybe it's an email. Maybe it's a recording - something. It has to be tangible.

CHANG: All right, so just to explain - this is an arbitration. I just want you to lay out what happens now. Is this going to unfold like a trial?

MCCANN: It will unfold like a trial, but technically, because it's arbitration, it isn't a trial per se. There is no jury. Stephen Burbank won't be robed as a judge. He'll just be wearing a suit.

CHANG: (Laughter).

MCCANN: But assuming there's no settlement, there will be a trial-like hearing.

CHANG: Witnesses will be called.

MCCANN: Yes, witnesses will be called. Evidence will be presented. The really important point there - Burbank has already signaled he thinks there's something there because he rejected the NFL's request for summary judgment. He's the decider. So it isn't as if the NFL is going to have a jury that could maybe view this differently. It's the same person.

CHANG: Right. They got to persuade Burbank, the arbitrator. Now, last year, President Trump pounced on this entire controversy.

(SOUNDBITE OF ARCHIVED RECORDING)

PRESIDENT DONALD TRUMP: You know, some owner's going to do that. He's going to say, that guy that disrespects our flag, he's fired.

CHANG: Given how vocal President Trump was about this entire thing, do you think Kaepernick is going to make some argument that these teams were scared of the president's tweets and that is why they didn't ultimately want to sign with him?

MCCANN: I think President Trump's comments are meaningful in the sense that we know that owners are influenced by them because there was a leaked audio tape of a meeting that the owners and players and team executives had, where the owners started talking about the president and the president's views.

And the owners also know that the president is not only inherently powerful by virtue of the position, but by affecting values of businesses and stock prices by things that he tweets and says. So if owners are conspiring because of their reaction to the president's comments, the president becomes a relevant figure.

CHANG: What happens if Kaepernick wins this case? Does that mean he'll be on a team as soon as this year?

MCCANN: No. So if Kaepernick wins, it doesn't restore him to an NFL roster. What it would do is provide him monetary compensation. There's no - there's no way any judge, jury, arbitrator can force an NFL team to sign Colin Kaepernick.

CHANG: Michael McCann is a legal analyst for Sports Illustrated. Thank you very much.

MCCANN: Thank you. Transcript provided by NPR, Copyright NPR.

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