Free Agent Quarterback

The NFL’s unexplained attempt to host a workout for free-agent quarterback, Colin Kaepernick, in front of NFL teams on Saturday, backfired when Kaepernick and the league failed to resolve key issues of mistrust, which have been a result of collusion claims and liability concerns.

According to the NFL, Kaepernick notified the league and the public that he would not participate in the workout, thirty minutes before the allotted time. The workout would have featured scouts and other personnel from NFL teams, and would have taken place at the Atlanta Falcons’ practice facility.

After rebuffing the NFL, Kaepernick held his own workout at a high school almost 100 kilometers from the Atlanta Falcons’ practice facility at 4 p.m. NFL Media’s, Jim Trotter, reported that only “a handful” of teams were present.

Kaepernick, 32, last threw a pass in an NFL game 1,049 days ago. The former San Francisco 49er and University of Nevada star’s most recent season was in 2016, when he was statistically ranked as average amongst starting NFL quarterbacks. He finished that season with a QB rating of 90.7. He also threw 16 touchdown passes against four interceptions and rushed for 468 yards. Kaepernick opted out of his contract in March of 2017, after learning that the 49ers planned to cut him. Kaepernick has not received a contract offer from an NFL team since.

It is clear that neither side trusts the other. While Kaepernick and the NFL settled his collusion grievance in February, there’s no reason to believe that Kaepernick feels differently about the NFL’s intentions towards him.

Kaepernick has asserted that some combination of NFL teams, and possibly the league, conspired to deny him a chance to play in the NFL during the 2017 and 2018 seasons. Pursuant to Article 17 of the collective bargaining agreement, collusion refers to at least two NFL teams, or the league and at least one team, conspiring to deprive a player of a collectively bargained right. With Kaepernick, this bargained right is the right to sign with a team.

Any team can decide on its own to not sign Kaepernick. A team can also avoid him due to personal disagreements, on the discretion of the coach or team owner, based on their dislikes of his decision to kneel during the anthem and Kaepernick’s political stance. Collusion, in contrast, occurs when teams communicate with one another, or with league officials, about keeping Kaepernick out.

Kaepernick’s previous theory of collusion relied on audio evidence of NFL owners discussing concerns about President Donald Trump’s critical viewpoints of Kaepernick and other kneeling players. The owners were mindful that Trump had used political rallies and Twitter to lambast them as weak-willed and insufficiently patriotic in handling the player anthem controversy. The President also linked that line of criticism with a declaration of his desire to “change tax law!”, a reference to favorable tax treatment that NFL owners receive when building new stadiums.

While it’s unknown if Kaepernick would have prevailed in the grievance, it’s clear that he possessed important evidence. To that end, in August 2018, neutral arbitrator Stephen Burbank denied the NFL’s request for summary judgment. Burbank concluded that Kaepernick had offered enough evidence, sufficient enough to raise a genuine issue of material fact.

Kaepernick’s lack of trust in the NFL is important, because he likely interpreted any ambiguity in arrangements for the workout as the league acting in bad faith. Kaepernick might have wondered if the league wanted to use the workout to embarrass him and signal to the football community that NFL teams simply did not want him based on his time away from the game.

On the other side of the coin, NFL officials, and particularly, commissioner Roger Goodell, had reasons to distrust Kaepernick’s intentions.

Goodell may have felt that he was doing a favor for Kaepernick, and that Kaepernick was ungrateful. The league had no obligation to host the workout and, arguably, was doing more for Kaepernick than it has done for other free agent players.

Also, in a statement on Saturday, the league noticeably mentioned that Nike planned to film Kaepernick at the workout, for purposes of an advertisement. The NFL may be nudging the public to believe that Kaepernick is motivated, at least in part by, endorsement interests.

The mutual lack of trust was apparent in other ways. Over the last few days, each side has leaked information to preferred journalists. Each side was in no doubt aware of that dynamic, which in turn only worsened their distrust for each other.

From what is known about Saturday’s would-have-been workout, the NFL reached out to Kaepernick’s representatives about it on Tuesday. Reporting indicates that Kaepernick’s representatives asked that the workout be delayed to a later date. Saturday is a relatively “bad” day for most NFL teams to scout given that most play on Sunday. However, the league apparently declined to postpone the workout.

In other words, the two sides had just five days to put together what would be a first of its kind workout. It’s not surprising that the endeavor collapsed.

It’s clear that certain topics were particularly problematic for both sides.

Take the injury liability waiver. The NFL claims that on Wednesday it sent to Kaepernick’s representatives what it termed “a standard liability waiver based on the waiver used by National Invitational Camp at all NFL Combines and by NFL clubs when trying out free agent players.”

Notice the phrase “based on.” This is an ambiguous term of art. Was the language identical to standard language? Possibly not, since the league employs the phrase “based on” and since Kaepernick’s representatives raised numerous objections. If the language was only similar in some ways, were the differences of the kind that would concern lawyers? Linguistic differences that an ordinary reader might dismiss as boilerplate semantics can raise serious red flags to a lawyer.

In a tweet, the league says Kaepernick’s representatives displayed “no pushback” when the NFL sent the injury waiver to them on Wednesday night. However, “no pushback,” particularly in the context of lawyers who receive a legal document for review, is not synonymous with lawyers being okay with the document.

An injury liability waiver is not a straightforward document—it is detailed and complex. A waiver is a document that can take time to review, especially since (as mentioned above) it may have differed in important ways from standard forms. It’s thus not really surprising that Kaepernick’s representatives sent back a proposed new version to the NFL. If the two sides gave themselves more time, they might have worked out differences.

By creating a circumstance for the league and teams to discuss Kaepernick and his continued unemployment while numerous other QBs have been signed, it’s possible the NFL may have unwittingly created the conditions for Kaepernick to consider a second collusion grievance.

As noted above, collusion is about teams talking about a player and advocating for a policy that deprives the player of a collectively bargained right. Discussions among and between teams and the league about Kaepernick must be done in ways that ensure two or more teams, or the league and at least one team, don’t land on a shared viewpoint that they ought to keep Kaepernick out of the league.

Kaepernick and the NFL reached a settlement in February. Details of the settlement are confidential, but it resolved collusion grievances brought by Kaepernick and Carolina Panthers safety Eric Reid. The settlement thus extinguishes Kaepernick’s claims surrounding what occurred from 2017 to February 2019. Unless the settlement is explicitly worded to also include future instances of collusion, Kaepernick would not have waived potential claims for any collusive conduct that occurred thereafter.

The rushed circumstances of the NFL’s offer to host a workout for Kaepernick could lead him to again wonder if the league’s ultimate goal is to keep him out. To the extent the NFL and its teams demanded that Kaepernick relinquish any collectively bargained rights or contractual rights to file future grievances and lawsuits, those demands could also be construed as forms of collusion.

To be sure, the league would refute such an idea. As mentioned above, the NFL could correctly assert that it offered Kaepernick a benefit—a workout in front of teams—that it doesn’t offer to other free agents. The league, moreover, could stress that if it really didn’t want Kaepernick back, it would have simply ignored him.

Kaepernick left his workout by offering a public statement that hints at a warning: “We’ll be waiting to hear from Roger Goodell, the NFL and the 32 teams.”


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