In most civil cases involving employment disputes, the employer eventually seeks summary judgment. The goal is both to avoid a trial by jury (since the jury may be influenced by factors other than a strict application of the law to the facts) and to force the employee to put his or her cards on the table, making it easier for the employer to prepare for trial.
In the case of Colin Kaepernick’s collusion grievance against the NFL, there’s no jury to avoid. Arbitrator Stephen Burbank, who will decide the summary judgment effort, also will render the verdict, if there’s a full-blown hearing. So the NFL’s obvious goal in seeking summary judgment will be to force Kaepernick and his lawyer, Mark Geragos, to provide a preview of their trial plans by showing how the alleged evidence of collusion meshes with the applicable law to prove that a violation occurred.
Thus, if someone is going to “dime out” the NFL, this would be a good time for it to happen. Likewise, any other smoking gun that Kaepernick and Geragos have tucked into a holster will need to emerge now, if they hope to ensure that the case will go to trial.
Ultimately, it won’t take much to beat the NFL’s motion. The law requires the facts and all reasonable factual inferences to be viewed in the light most favorable to Kaepernick.
And that’s the only potential downside for the league in what is an otherwise nothing-to-lose proposition; as Burbank applies the appropriate standard, he may begin to see the case the way Kaepernick and Geragos see it, allowing Burbank to eventually conclude that, indeed, an unspoken agreement existed to shun Kaepernick due to his decision to protest during the national anthem.