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  • John Elway was right to wonder if he could legally discuss his deposition from Colin Kaepernick’s collusion case. In hindsight, he should have refrained from the topic altogether.
By Michael McCann
August 16, 2018

During a press conference on Thursday, Denver Broncos general manager John Elway was asked if his team—which is exploring the possibility of signing a veteran free-agent quarterback—regards free-agent quarterback Colin Kaepernick as a “viable option.” Keep in mind, the Broncos’ quarterback situation is in flux. Paxton Lynch, the team’s first-round pick in 2016, was recently demoted to the No. 3 on the depth chart behind Case Keenum and rookie Chad Kelly.

Elway responded to the question as follows:

"You know what, and I said this a while ago: Colin had his chance to be here. We offered him a contract. He didn't take it. And as I said at my deposition—and I don’t know if I’ll be legally able to say this—but he had his chance to be here. He passed it."

NFL
Broncos' John Elway: Colin Kaepernick 'Had His Chance to be Here' and 'Passed' on Contract

Elway’s reference to “my deposition” concerns when he gave sworn testimony in May. With Kaepernick in attendance at Elway’s deposition, the 58-year-old GM responded to questions posed by Kaepernick’s attorneys. Members of Kaepernick’s legal team, which includes Los Angeles attorneys Mark Geragos and Ben Meiselas, have deposed more than two dozen NFL owners and team executives as part of the grievance process. Kaepernick’s attorneys believe that some combination of NFL officials, NFL owners and team executives have conspired to keep Kaepernick out of the NFL, and that they are animated by fear of President Donald Trump—one of Kaepernick’s sharpest critics.

As explained below, Elway’s comments do not undermine Kaepernick’s grievance. Just the opposite, actually, they could prove problematic for both him and the NFL.

Kaepernick being offered a contract in 2016 doesn’t disprove collusion in 2017

For two important reasons, the Broncos offering Kaepernick a contract in 2016 in no way negates the possibility that Kaepernick later experienced collusion.

First, Elway’s reference to an offer concerns a situation in April 2016—long before the relevant time period for Kaepernick’s grievance. Kaepernick was given the opportunity to facilitate a trade from the 49ers to the Broncos. A precondition to the trade was Kaepernick agreeing to sign a new contract. The new contract, however, would have reduced the guaranteed portion of Kaepernick’s contract from $11.9 million to $7 million.

Unsurprisingly, Kaepernick refused to accept a reduction of approximately 42% in guaranteed money. He instead remained with the 49ers through the 2016 season, during which time Kaepernick began to kneel while the national anthem was played. He opted out of his contract with the 49ers on March 3, 2017. It’s now 531 days later. The 30-year-old Kaepernick, who led the 49ers to a division championship in 2012 and a Super Bowl appearance in 2013, remains unsigned and unwanted.

Whether Kaepernick’s NFL career would have been better off had he joined the Broncos in April 2016 is an interesting football question, but it is immaterial to his grievance. Under Article 17 of the collective bargaining agreement between the NFL and NFLPA, collusion concerns actions that occurred, or were reasonably discoverable, during the preceding 90 days. Kaepernick filed his grievance on October 15, 2017. This means the alleged collusion took place, or could have been discovered, at point(s) between mid-July and mid-October 2017—in other words, long after Kaepernick declined to take a massive pay cut to join the Broncos.

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Second, even if Kaepernick had rejected an opportunity to join the Broncos within 90 days of his collusion filing, that decision wouldn’t have disproved collusion. A finding of collusion doesn’t require a league-wide conspiracy. It only takes two or more teams, or the league and at least one team, conspiring to deny Kaepernick of the collectively-bargained right to sign with a team. There are 32 NFL teams. Taking one team out of the equation doesn’t change much. There remain numerous combinations of 31 teams that could lead to two or more teams (or one team and the league itself) conspiring against a player.

Elway’s comments could prove problematic for the NFL both procedurally and substantively

In his statement, Elway wondered if he was “legally able” to reveal his deposition testimony. Elway was right to wonder. In hindsight, he should have refrained from the topic altogether.

First, those who partake in Kaepernick’s grievance do so under a protective order. The order forbids disclosure of any sensitive information contemplated in the grievance. The order governs all players, team executives, team owners, league officials and anyone else who participates in the grievance. The grievance’s arbitrator, University of Pennsylvania law professor Stephen Burbank, issued the order—possibly at the behest of the NFL, which (like other businesses) normally prefers confidentiality in arbitration. Elway openly discussing his testimony would appear to violate the protective order. Such disclosure is also at odds with the CBA, which requires confidentiality of collusion grievances.

Burbank could conceivably sanction Elway and the NFL for the disclosure; separately, the NFL could consider fining Elway. Regardless, this is an inopportune time for the NFL to annoy Burbank. He is currently deciding whether to grant summary judgment in favor of the NFL. Under Section 7 of Article 17, Burbank is considering whether the evidence Kaepernick has offered thus far is sufficient enough to raise a genuine issue of material fact. This consideration occurs after the two sides completed the discovery process, which involves witness testimony and release of physical and electronic evidence. In order to prevail in his grievance, Kaepernick must show, by a clear preponderance of the evidence, that he experienced collusion. Such evidence could include testimony, texts, emails and other materials and correspondences.

If Burbank finds that Kaepernick has already shown enough evidence to defeat a motion for summary judgment, he would deny summary judgment. Such a move would concern NFL officials and could lead them to worry that Burbank is inclined to rule in favor of Kaepernick. Such anxiety might propel the NFL to seek a financial settlement with Kaepernick.

It is also worth noting that Kaepernick’s attorneys only targeted certain team owners and executives. It stands to reason that they pursued Elway in hopes that he might offer the very comments he spoke on Thursday. With that in mind, Burbank almost certainly wants to know the answer to the following question: If Elway wanted to sign Kaepernick in April 2016—before the kneeling began—why would he not want to sign Kaepernick in 2017 or 2018?

If the answer is Elway felt that Kaepernick’s play in the 2016 season had revealed a regression between the player he sought in April 2016 and the one that became available in March 2017, Elway would seem to possess a meritorious reason. One problem with that explanation, though, is that Kaepernick played better in 2016, when he threw for 16 touchdowns and only four interceptions, than he did in 2015. In fact, his QB rating in 2016 was 90.7 whereas it was 78.5 in 2015. Also, if Kaepernick was worth $7 million to the Broncos in April 2016, was he not worth engaging at all when he became available in March 2017 and remained available thereafter?

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Alternatively, if the answer is Elway was annoyed that Kaepernick turned down an opportunity in 2016 and then held a grudge against Kaepernick, Elway would have acted against his own self-interest: he wouldn’t have signed a player he otherwise wanted merely because the player had previously rejected him. Although this explanation is plausible, it runs counter to how general managers normally operate: they want to win and will do everything within the rules to win. There have been plenty of general managers who sign players after those players previously said “no” or had left the team. To that point, Elway didn’t hold a grudge in signing Brock Osweiler in 2017, two years after Osweiler departed the Broncos to sign with the Houston Texans.

As yet another possible answer, if Elway and the Broncos didn’t sign Kaepernick in 2017 because of the controversy over kneeling, Elway would need to explain how he reached that conclusion. If the team came to that conclusion on its own—and without any consultation with other teams or league officials—the team would not have colluded. It might not have been a wise decision in terms of football and winning games, but it would have been okay in terms of the rules: a team, acting independently, could decide it doesn’t want Kaepernick because of the anthem controversy.

But that explanation would beg another question: why would a team worry about the impact of signing a player who is connected to the anthem controversy? The answer could lead to testimony that the team’s worry was shared by other teams. To that end, if there were consultations between the Broncos and other teams about not signing Kaepernick, then Kaepernick’s theory would be greatly advanced.

The MMQB will keep you posted on all key developments in Kaepernick’s collusion grievance. 

Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.

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