Many have criticized Colin Kaepernick for settling his collusion grievance against the NFL because the settlement keeps the details of the case from entering the public domain. Some have responded to this argument by pointing out that, because Kaepernick opted to pursue an arbitration and not a lawsuit, the details wouldn’t have entered the public domain, because the case would have unfolded privately.
That’s technically accurate, but it doesn’t mean the details never would have surfaced. As noted by Peter King in his Football Morning in America column, the outcome of the arbitration could have been challenged in federal court. Although such efforts as a practical matter usually fail, success would come from attaching as exhibits to the court papers items like the full transcript of the formal arbitration hearing.
Even without such proceedings, however, testimony, text messages, emails, etc. easily could have been released by Kaepernick or his lawyers after the case had ended. Despite the existence of a gag order that kept the parties from discussing the case while it was pending, arbitrator Stephen Burbank would have had no ability to sanction Kaepernick’s lawyers or otherwise limit their ability to send items to media members on the arbitration ended, even without a challenge in federal court.
Keeping those materials secret is a big part of what the NFL paid for. This doesn’t necessarily mean that a smoking gun was lurking in the evidence. But there surely were potentially embarrassing snippets of testimony or text messages or emails or other documents that the NFL would have preferred to keep out of public view; indeed, it was the NFL not Kaepernick that insisted on full and complete secrecy while the proceedings were pending.
By settling the case and securing a commitment that none of the information developed during the litigation would ever be published, the NFL keeps everything under wraps, including but not limited to whatever text message or emails or other documents prompted Kaepernick’s lawyers to attempt to question the Commissioner’s wife.