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  • Without the Packers QB on the field every week, the NFL is a lesser product as a whole. But it will take more than an injury to one of the NFL's biggest stars to negatively impact the league. Also, notes on the upcoming NFL owners meetings (and why Kaepernick should be invited), an opportunity for change in NFL policy and precident, a potential solution for players' social messages and more.
By Andrew Brandt
October 17, 2017

Before getting to the NFL’s continuing drama off the field, a personal and professional thought about the potential season-ending injury to Aaron Rodgers. First and foremost, I feel for Aaron. We were close during our three years together with the Packers and just had a nice visit a few weeks ago in Green Bay. He had his usual California chill yet seemed truly energized, fit and poised for another MVP-level season—to which he was well on his way. And this will tell you something about Aaron: after our visit (which included my son Max), he was whisked away and said a quick goodbye to me. A minute later, the door swung open as he realized he hadn’t said goodbye to someone else. “Bye Max!” he said. Of course, Max beamed.

As so often happens in our instant world, speculation on a veteran QB replacement for the Packers began before Aaron had reached the locker room. I smiled at “hot takes” about Tony Romo or Colin Kaepernick (more on him below), knowing that the Packers are the ultimate draft-and-develop team, trusting their scouting and building from within. The question I received most during the three years when Aaron was a backup to Brett Favre was Is Rodgers really going to take over when Brett retires? You’re going to sign a veteran right? The answer, of course, was Yes, and no. Of course Brett Hundley does not have Aaron’s pedigree, but the Packers have been developing him for a couple of years. Now is not the time to import a quick-fix veteran, whether it be Kaepernick, Romo or anyone else.

More broadly, Aaron’s injury affects the business of football, joining other stars that move the needle, such as Odell Beckham Jr. and J.J. Watt, on the sidelines. Not to minimize the impact of Beckham, Watt, David Johnson or others, but Aaron impacts team performance more than any NFL player. And the fact that the Packers are now a lesser product makes the NFL is a lesser brand, giving energy to the naysayers who continue to predict the decline of the NFL. As I always say, good luck with that.

With everything going on surrounding the NFL, much of it perceived to be negative, television ratings were up this past weekend. It will take a lot more than individual injuries, even to the game’s biggest stars, to make a meaningful dent on the continued prosperity and popularity of the NFL. Although the NFL has challenges with the player protests, concussions, injuries, etc., every other sports league and/or entertainment options can only wish they had the NFL’s “problems.” The NFL still drives conversation in sports (and news) media like no other sport and provides the sweet spot demographic for networks and advertisers. Will that change? Well, not in the foreseeable future.

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Having said that, let’s examine this moment in time…

As a lawyer and law professor, I preach constantly about the importance of policy and precedent as guidelines for future disputes. The NFL set its policy and precedent immediately following the firestorm surrounding Kaepernick’s sitting/kneeling 14 months ago, tweeting that players are “encouraged, but not required” to stand for the anthem. And further inquiries into policy, spurred on by the President (of course), revealed consistent rules that players “should”—not “must”—stand for the anthem. (Interestingly the NBA, which begins play this week, requires players to stand.)

Now, fueled in part by braying fans and sponsors and doubling down from the President, owners want players to “stick to sports” and move on. However, players, or certainly a segment of them, have not been interested in that cooptation. Nothing happens in a vacuum—we are in a polarizing and divisive time with race relations in this country, and the player protests in the NFL are reflective of that. 

Changes in established policy and precedent are messy. This is a moment in time.

League vs. Team

As I often note, we are in the midst of the era of the NFL conduct commissioner. Roger Goodell has prioritized role modeling and player behavior, and ownership has become increasingly deferential on most matters involving conduct. On the issue of anthem protests, however, the impetus for change appears to be coming not from Goodell, but from ownership. Unlike the usual operating procedure with with player conduct, owners are not “leaving it to Roger” here.

Cowboys owner—and league power broker—Jerry Jones, fresh off a conversation with President Trump, broke from league precedent and stated that any Cowboy protesting the anthem would not play, bringing up all kinds of legal and practical questions. Would that policy be applied to Dak Prescott, Ezekiel Elliot and other stars? If a majority of the team decided to kneel, would the Cowboys forfeit the game? Jones has provided some cover for other owners to set similar rules.

Of course, if a player were to face discipline or retribution based on protest, we would expect the NFLPA to act. More urgently, however, what if there are players wanting to protest but co-opted into not doing so by management? This highlights the need for a coordinated solution.

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NFLPA input?

With NFLPA head DeMaurice Smith having just received a contract extension and one pending for Goodell, here is a golden opportunity for two sides with a history of mistrust. This is not another issue to add to the list for collective bargaining; it demands immediate attention and is a unique chance for détente, if not harmony.

As optimistic as I am about a potential opening, we have been here before. After the national hysteria over the Ray Rice video three years ago, there was a clear opportunity for the NFL to craft a bilateral solution with the NFLPA. Yet a couple of months later, the NFL unveiled a new Conduct Policy that not only ignored union input but also had two prime features—the Commissioner Exempt List and Paid Leave—which the NFLPA vehemently opposed (a union grievance challenging the policy failed).  

Unlike the Conduct Policy, however, it would appear the NFL needs NFLPA input more than it did then.

A name to consider

In approaching the NFL meetings this week, we have heard that players will be invited, and expect leaders such as Malcolm Jenkins, Michael Bennett and others to be among those invited. Here is a suggestion for an invite: Colin Kaepernick. Would his presence make people uncomfortable? Of course, but as I often note, change only happens outside the comfort zone. Now that Kaepernick now has a collusion grievance pending, it probably won’t happen but, in my mind, even an invitation to Kaepernick would go a long way.

As to Kaepernick’s collusion claim, a couple of thoughts. First, absent a smoking gun(s) such as a text, email or other record of a communication between two or more teams agreeing to not sign him, he faces an uphill climb. If asked about Kaepernick, every team would recite some version of “We liked the guys we had” or “Our scouts had other guys rated above him.” Collusion requires concerted action; without evidence of a coordinated effort—and no, social media shaming from the President is not collusion—Kaepernick’s case is a nonstarter. 

An interesting note on the Kaepernick collusion case is that Kaepernick’s private attorneys are bringing it rather than the NFLPA, who found out about this claim when we did. This indicates to me that there is some tension between Kaepernick and his union, which has been mostly silent about Kaepernick through his eight months of unemployment.

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Important meeting

Spinning back to the meetings... As with so many issues involving the NFL and its players, this will ultimately become a negotiation. Owners are looking to satisfy certain stakeholders—sponsors, networks, fans—as well as most important constituency: the players.

One potential solution, hinted at in Goodell’s letter last week, would be to have the league and teams provide outlets/forums for the players’ social messages, with the quid pro quo that those outlets don't involve the anthem or happen on game day. Will that be enough of a solution to satisfy players? What other measures can be taken? The NFL is backing a bipartisan criminal justice reform bill in the U.S. Senate, which is supported by Seahawks’ Doug Baldwin. Perhaps NFL owners will commit to additional legislative efforts for criminal justice legislation proposed by players to combat racial injustice and inequality. Specifics will be important here. 

One idea I can think of to implement immediately would be a “Leadership Council” of owners and players to set policy and precedent, and create action steps to take the conversation away from “the flag” to broader concerns of equality and race. Experts in race relations and peaceful protest should be brought in to add gravitas and insight to the Council. A bilateral solution such as this would go a long way for Goodell, Smith and owner-player relations.

The NFL, NFLPA, owners and players have a real opportunity here amidst what appears to be a crisis with the President and Vice President in the breach. Statements are easy, true change is much more difficult. As the NFL preaches in its role regarding player safety, the league is a beacon for all others to emulate. The same can be true here. The world is watching.

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