Sports Illustrated has obtained a copy of the waiver that representatives for Colin Kaepernick requested that the NFL use for the planned workout on Saturday at the Atlanta Falcons’ training facility. Kaepernick’s waiver is radically different from the waiver that the NFL requested he sign. The NFL’s waiver has been obtained by various media, including Sports Illustrated.
Breaking down Kaepernick’s waiver and his priorities
One key difference between the two waivers: length. Kaepernick’s waiver contains 268 words. The NFL’s waiver is 358% longer with 1,226 words. The stark contrast in length concerning the exact same two-hour event is emblematic of how dissimilarly both sides approached Saturday’s workout and how their assumptions clashed as well.
Length is hardly the most important difference.
Kaepernick’s waiver, which is titled RELEASE OF LIABILITY AND ASSUMPTION OF RISK AGREEMENT, made clear that he would have completely assumed the risk of physical injury. It also signaled that he would not have surrendered any right to pursue employment-related claims against the NFL or its teams in the future.
Kaepernick’s willingness to accept the risk of physical injuries was true even of injuries caused by potential negligent acts by the NFL and even of injuries that caused him to suffer permanent paralysis or death. To that end, Kaepernick was prepared to state that the “risk of serious injury” can be reduced but not eliminated by “preventative measures," and that regardless of those measures, there remains “the potential permanent paralysis and/or death” by participating in a football workout.
Further, in one key passage, Kaepernick made clear that he fully accepted all physical dangers:
“I knowingly and freely assume all such risk, both known and unknown, even if arising from the negligence of releases or by activities or actions of others in connection with physical activity relating to the workout and assume full responsibility for all activities and actions.”
To leave no doubt in his assumption of physical risk, Kaepernick also pledged to explicitly waive away any conceivable legal claims for physical injury, disability or death. This would be true for himself as well as his heirs and next of kin. Specifically, the release mentioned, in all caps, that he and his heirs “HEREBY RELEASE, INDEMNIFY, AND HOLD HARMLESS” a number of persons and entities who were connected to the workout. They are named: “Joe Philbin, Hue Jackson, the NFL and each of the 32-member clubs, and [any persons who work for the NFL or clubs].”
As worded, Kaepernick’s waiver would have immunized the NFL from liability for any and all physical injuries he suffered during the workout. It would have also assured that the league did not worry about the possibility of a lawsuit brought by Kaepernick’s family if he somehow died during the workout due to an accident or negligence. Obviously, the risk of death in the workout would have been negligible, but the larger point is that Kaepernick left no room for him or his family to later claim that the league caused him to suffer a grievous injury or death.
Kaepernick’s waiver contained no reference to potential employment-related claims. The waiver was entirely about physical injury or death.
While Kaepernick would have signed the waiver on his own volition, he has been advised by two prominent attorneys, Ben Meiselas and Mark Geragos, and well-known agent Jeff Nalley throughout this process. This trio has advised Kaepernick for years and helped him obtain a multi-million-dollar collusion settlement from the NFL back in February.
Breaking down the NFL’s waiver and why it was problematic to Kaepernick
While Kaepernick’s waiver is explicitly limited to physical injury or death issues, the NFL’s proposed waiver—which is titled WORKOUT WAIVER AND RELEASE OF LIABILITY—expends considerable energy on a broader scope of issues and potential legal claims.
To that end, one passage of the NFL’s waiver would have required Kaepernick to acknowledge that he was made “no promise of employment” by participating in a workout. Likewise, Kaepernick would have been required to acknowledge that no team participating in the workout would have been required to offer him employment.
From the NFL’s vantage point, this type of employment language was important to clarify: a workout in front of NFL teams is a mere tryout. It doesn’t guarantee employment with any team, particularly since Kaepernick being offered a contract would depend on whether any team wanted to hire him. The NFL also is mindful of the potential risk of workers’ comp claims if an injury occurred and if the player (in this case Kaepernick) claimed that he took on the status of a person eligible for workers’ comp insurance.
Yet from Kaepernick’s vantage point, this exact same language is problematic. Here’s why: if scouts and other personnel from different teams discussed Kaepernick in an unfavorable light and if they expressed a desire to keep him out of the league, that type of exchange could conceivably give grounds to file a lawsuit or a second collusion grievance under Article 17 of the collective bargaining agreement. Kaepernick—who clearly believes the league and teams unlawfully schemed to keep him out of the NFL from 2017 to 2019—would not want to surrender the ability to invoke that legal right in the future. Stated differently, if teams used the workout to engage in collusive activities against Kaepernick, there is no reason for Kaepernick to forgo the chance to pursue a legal claim over those activities.
The different readings by the NFL and Kaepernick concerning the same exact language are both defensible. Both readings make sense when viewed from their respective shoes. They also illustrate why more than five days were needed to put the event together.
Another key difference rests in the contrasting interpretations of the release’s scope. The NFL’s waiver includes a passage expressing that Kaepernick, “in consideration for the opportunity to participate in the workout," would have released the NFL and everyone else connected to the workout from “any and all claims, demands, actions, causes of action, suits, grievances, costs, losses, expenses, damages, injuries, illnesses, and losses (including death) caused by, arising out of, occurring during, or related directly or indirectly to the workout, player’s presence at the facility, and any medical treatment or services rendered in connection with or necessitated by player’s participation in the workout.”
The NFL believes this language simply affirms that Kaepernick would assume the risk of physical injury or death if something went wrong at the workout.
Kaepernick regards this same language as much more extensive than a release of liability for physical injury or death.
For one, the NFL’s waiver previously qualified the “opportunity to participate in the workout” as in connection with employment (discussed above in this story). Such a linkage arguably suggests that the waiver goes beyond physical injury and into the realm of employment.
For another, the NFL’s waiver uses the expression “any and all claims, demands, actions, causes of action, suits, grievances …” Kaepernick could rightfully question why the league is concerned about “any and all” claims if only physical injury claims are at issue. Further, the phrase “demands, actions, causes of action, suits, grievances” probably gave Kaepernick pause. By signing such a statement, he might have relinquished the chance to grieve or sue over an employment matter.
The NFL insists the waiver they asked Kaepernick to sign is standard. However, a standard waiver might not be appropriate for Kaepernick. This is neither a typical player nor a typical situation. Kaepernick and the league, and their attorneys, battled in a collusion grievance for 16 months. They also reached a settlement concerning past claims (from 2017 to February 2019) but not possible claims that could have occurred after February, and that could still occur. Perhaps most importantly, both sides clearly don’t trust the other. In short, this is not a standard situation and thus a standard form might be ill-suited.
In response, the NFL can rationally argue that it doesn’t want to provide one player with preferential treatment, particularly since other players—and the NFLPA—could demand that any concessions the league makes to Kaepernick become precedent for all players. Stated differently, if the NFL allowed Kaepernick to write his own rules for the workout, other players could demand the same.
Which side is right? That’s an impossible question to answer when both sides see the same situation as completely different, and neither side trusts the other.
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.