The NFL’s unexplained attempt to host a workout for free-agent quarterback Colin Kaepernick in front of teams on Saturday backfired when Kaepernick and the league failed to resolve key logistical issues.
According to the NFL, Kaepernick notified the league (and the public) that he would not participate about a half-hour before the workout would have started at 3 p.m. The workout would have featured scouts and other personnel from 25 teams and would have taken place at the Atlanta Falcons’ practice facility in Flowery Branch, Georgia.
After rebuffing the NFL, Kaepernick held his own workout at Charles Drew High School in Riverdale, Georgia, at 4 p.m. NFL Media’s Jim Trotter reports that “a handful” of teams were present.
Kaepernick, 32, last threw a pass in an NFL game 1,049 days ago. The former San Francisco 49ers and University of Nevada star’s most recent season was in 2016 when he was statistically in the middle of starting NFL quarterbacks. He finished that season with a QB rating of 90.7. He also threw for 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 hasn’t received a contract offer from an NFL team since.
Why did the NFL’s effort to host a workout for Kaepernick fail? Could the failure give rise to a potential legal controversy for the NFL? My five takeaways:
1. Distrust and presumption of bad faith linger from collusion grievance
It’s obvious 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 than during the 16 months that he pursued his legal case.
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, it 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 because the team’s owner or coach dislikes his kneeling during the national anthem or dislikes his politics. 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 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 teams simply didn’t want him.
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. The other side was no doubt aware of that dynamic, which in turn only worsened their distrust for each other.
2. No script to follow leads to a battle of assumptions
Kaepernick would have become the first player in history who believed that the league had banished him through illegal acts to audition for teams at a workout hosted by the NFL.
There was thus no script for anyone to follow.
While the league has extensive experience hosting workouts and interview sessions for draft-eligible players at the NFL Combine, and while NFL teams have hosted workouts for veteran free agents, Kaepernick’s situation is completely different. He’s battled the NFL in a controversy that became a news story and fodder for political debate. Kaepernick’s now a social justice figure who some adore and others despise. His situation has no parallel. This was uncharted waters for all involved and, clearly, they couldn’t steer the ship to dock.
Without a predictive order as to how the workout should have played out, each side was inclined to follow different and conflicting assumptions. Their lack of regular and direct communication only made matters worse.
3. This was a complicated and curiously rushed concept
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. 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.
Below are 25 logistical and legal questions about the workout planning that came to my mind. None has an obviously correct answer.
1. Would the media be allowed to watch?
2. Would Kaepernick or the NFL, or both, record the workout?
3. Who would own the video and other intellectual property?
4. How would the video(s) be distributed and who would be recipients of that distribution?
5. Would distributed video be edited or raw—and if edited, who edits?
6. Would NFL.com have exclusivity over any publicly released video?
7. Would NFL advertisers be allowed to promote their products during the workout and on video?
8. Would Kaepernick’s sponsors, including Nike, be allowed access to record?
9. How would the workout be designed?
10. Who would have final say over that design?
11. Who would ensure the quality and safety of the field conditions for the type of on-field activities that Kaepernick would conduct?
12. Which receivers would Kaepernick throw to?
13. Who would coach or instruct Kaepernick during the workout?
14. Who would pay for the time of the receivers and coach?
15. Would the receivers and coach be employees or independent contractors?
16. Would the receivers and coach be indemnified from liability?
17. Which kinds of questions would NFL personnel be allowed to ask Kaepernick?
18. Would NFL teams ask questions to Kaepernick in groups or one-on-one?
19. Would there be a transcript of Kaepernick’s responses to questions, and if so, would it be raw or edited?
20. Would any transcript be released to the media?
21. What happens if Kaepernick is injured during the workout—to what extent, if any, would he contractually waive away potential legal claims against the NFL, the Falcons, companies retained by the NFL or Falcons to care for the facility, the coach and the players?
22. Would the NFL’s insurance policies cover the workout?
23. Would Kaepernick be protected by the CBA or is the workout outside of the scope of the CBA?
24. If NFL personnel talked to one another about Kaepernick, would Kaepernick be able to use their conversations in a potential future collusion grievance?
25. Would Kaepernick need to waive away the right to file a second collusion grievance as a condition to participate in the workout?
These are merely some of many potential questions. I’m sure you can identify others. Some were resolved by Saturday. Others weren’t.
The bottom line is this: the NFL’s belief that it could resolve a complex set of issues in merely five days, particularly with a player who has reason to distrust the NFL, is hard to understand.
4. The injury liability waiver illustrates unrealistic assumptions
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 attorneys? Linguistic differences that an ordinary reader might dismiss as boilerplate semantics can raise serious red flags to an attorney.
In a tweet, the league says Kaepernick’s representatives displayed “no pushback” when the NFL sent the injury waiver to them on Wednesday night. My response: “no pushback," particularly in the context of attorneys who receive a legal document for review, is not synonymous with attorneys 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.
5. A second collusion grievance isn’t out of the question
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 departed 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."
We’ll be waiting, too.
Michael McCann is SI’s Legal Analyst. He is also an attorney and the Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.