The knee-jerk reaction to the news that the lawyers handling the Colin Kaepernick grievance would like to question former Papa John’s CEO John Schnatter was that the league’s internal arbitration processes have no jurisdiction over Schnatter, and thus he can’t be forced to testify. There’s one significant caveat that applies, however.
Because the grievance will unfold via an arbitration that ultimately falls within the confines of the Federal Arbitration Act, Kaepernick’s lawyers could turn to the courts for the issuance and enforcement of a subpoena that would require Schnatter to appear and to testify. It nevertheless would be a significant ordeal to accomplish, ultimately requiring Kaepernick’s legal team to jump through a variety of hoops in a variety of courts — and to fight both the NFL and Schnatter’s lawyers, pretty much every step of the way.
In the end, the entire grievance could be delayed by as long as six months, all in the name of getting Schnatter to cooperate, against his will. Which means that Kaepernick’s lawyers eventually will have to ask themselves whether whatever Schnatter may say would justify applying the brakes to the entire operation.
The potential opportunity to question Schnatter via a procedure that ultimately falls within the confines of the Federal Arbitration Act raises an intriguing question about the now-resolved Ezekiel Elliott case. Elliott’s lawyers complained that the NFL failed to require his accuser to testify before the league’s arbitrator, claiming that the NFL had no power to compel her to participate. Since the NFL’s internal procedure for resolving player discipline technically constitutes an arbitration within the confines of the Federal Arbitration Act, Elliott possibly could have tried to use the court system to secure a subpoena.