The only thing you need to understand about Colin Kaepernick’s action against the NFL is this.
If he has paperwork proving that the owners conspired to keep him out of football, he wins. If he doesn’t, he almost certainly loses.
Oh, there’s a lot of gobbled-lawyerese in any court proceeding; that’s why lawyers lawyer.
But the fact is this: Kaepernick and/or his lawyers have to produce the smoking gun, as Marvin Miller did in the ‘80s collusion cases against Major League Baseball, In those, the owners conspired not to sign free agents, did so in writing, and got their hats blocked in court.
Then they did it again, and lost again. And then, clever fellows that they were, they did it a third time, and got caught once more.
Lesson learned: From that moment, collusion became a paperless enterprise. No smoke, no gun. No gun, no case. It couldn’t have been simpler.
Now you may try to apply logic like, “Brandon Weeden,” or “Brett Hundley,” or “the owners are . . .” And you may well be correct. In fact, you almost certainly are.
But being correct isn’t the same as proving it, and without proof, Kaepernick’s case is an excellent example of well-constructed circumstantial evidence that will amount to little. The bar for this is high, and like everything else in life, it requires receipts.
Therein lies Kaepernick’s problem. Unless, of course, he has the receipts – statements on tape, or written memoranda, or rogue texts. In that case, therein lies, the league’s problem.
It is hard to imagine that the 32 owners, with all the lawyers at their command, would be so stupid as to leave collectable evidence laying about, but that’s what people assumed in the ‘80s, too, and baseball had to pay $280 million for its carelessness.
Still, that isn’t way to bet. Barry Bonds filed a lawsuit along similar grounds when he couldn’t get work after being released by the Giants in 2007, and had no corroboration for what he suspected was a blackball against him for, well, for being Barry Bonds. So he lost.
And I suspect that is what we have here as well. Kaepernick’s suit risks nothing for him, as his NFL days are almost certainly over anyway, so he may as well have his day in court if not the field.
But if he has the goods and can present them coherently before a judge, we’ve got an entirely different game, and one more reminder that we are in bloodsport territory between owners and players now, and there are no rules.
Except that one about paperwork. That one never changes.