Kaepernick's Case: Can an Arbitrator Subpoena Trump and Pence?

I share my written interview with Law360 on this topic.

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Arbitrators routinely issue subpoenas under the LMRA for persons to appear and for production of documents. Most of the time, the parties readily consent to the subpoena.

From my experience as a labor arbitrator, I’d describe this as a voluntary and self-regulating process—for example, compelling people in a termination case to appear at a hearing.

On rare occasion, a party ignores or challenges a subpoena. In these rare cases, a federal court has enforced my subpoena. 

I haven’t gone to court for this—the party requesting the subpoena has done so.

But even then, it’s not a done deal. As an arbitrator, I cannot enforce a subpoena. People can simply not appear.

In those very rare cases, I allow the party who sought the subpoena to put on testimony and enter exhibits; and in these uncommon instances, I have found facts in favor of that party, to the detriment of a recalcitrant or obstructing party. 

So, that’s one distinct possibility here.

Even then, however, it’s not an automatic win for Kaepernick. He still needs to have something for the arbitrator to look at. In that vein, I think a better path is for Kaepernick to subpoena the emails, text messages, phone records, flight logs, and league meeting records that involve owners.

Even if these materials only reference Trump or Pence, it puts the arbitrator on a much better footing to find facts in Kaepernick’s favor.