One of the most discussed, debated and analyzed football players during the last three years is one who has not played a single snap. The mere mention of the name Colin Kaepernick draws a strong reaction, whether positive or negative, from sports fans and non-fans alike. Kaepernick is a lightning rod for praise or for scorn, depending on one’s point of view.
On Tuesday, Nov. 12, the NFL informed Kaepernick and his representatives that it would stage a private workout for the quarterback that Saturday at the Falcons’ facility in Flowery Branch, Ga., and all 32 NFL teams would be invited to attend. When it came time for that workout, Kaepernick chose to move the workout to an Atlanta-area high school, causing a significant amount of chaos.
Now more than a week removed from that purported workout, there are more questions than answers. Having now had an opportunity to digest this episode, here are some insights on a workout that was about much more than giving a player a chance to show what he can offer NFL teams.
• I have been around the NFL—as an agent, team executive and analyst—for close to 30 years and have never seen the league set up an individual player workout. Teams and agents set up workouts; the NFL does not set up workouts. This was unprecedented, and it showed, as unanticipated problems with logistics, waivers, timing, etc. were inevitable.
• The premise of the workout made no sense except, of course, for reasons beyond what meets the eye. NFL teams have had three years to host Kaepernick for a private workout—but not a single team has done so. And now we were supposed to believe that since the NFL hastily set up a workout, teams would magically appear with genuine interest? Please.
• One reason for the workout, in my opinion, was to serve as a mutual cover for both the league and its teams. The NFL can now plausibly say Hey, if he’s not signed, don’t blame us, we set up a workout! And the teams now do not have to host Kaepernick at their facility and potentially draw the wrath of a segment of their fan base. Kaepernick was a pawn in this mutual cover.
• Where was the fire? Why did this workout have to happen on a Saturday in November? No team had signed Kaepernick for three years; no one was going to sign him for 2019. The workout could have happened on any Tuesday, when NFL teams are used to having workouts, or anytime after the season when teams prepare their rosters for 2020. The urgency about having it on Nov. 16 at the Falcons’ facility remains another curious part of this saga. It suggests that the NFL felt some kind of time pressure to do this.
• The lack of signed waiver agreement prior to the day of the workout was an ominous sign, and there is blame to both sides for it. Lawyers representing both Kaepernick and the NFL should never have sent Kaepernick or scouts to Atlanta without a buttoned-up, signed document.
• I dealt with waivers every week when with the Packers. Players would sign standard tryout waivers, absolving the team of injury liability and any future earnings. Virtually all players and agents sign the waiver without question, doing whatever asked towards possible NFL employment. With Kaepernick, the NFL waiver in question reportedly contained language beyond the standard team injury waiver, precluding future litigation by Kaepernick as well. Even with that, I am sure the NFL, knowing the lack of prospects for employment for the past three years, expected Kaepernick to sign it. But Kaepernick and his lawyers pushed back, causing the workout to spiral to its death.
• As a lawyer, I expected that the resolution of Kaepernick’s collusion case earlier this year would have released the league from any further claims by Kaepernick. While speculation focused on the amount of settlement—estimates ranged from $1 million to $20 million—there was no discussion of releasing the NFL from future litigation. Evidently that settlement did not include such a release, which, of course, may help to explain this mysterious workout. And even though Kaepernick balked at signing the waiver, the NFL would point to this workout were he to ever bring a future action against the league.
So where are we after this NFL-produced Kaepernick workout (which never happened)? Well, we are in the same place we were before with no team showing interest in him (18 of the 25 teams who reportedly sent representatives to the workout didn’t travel to another part of Atlanta—minutes away from the airport—to see him perform). In addition, whatever waiver was proposed to stave off future litigation wasn’t signed, giving the NFL anxiety about public perception and future litigation.
It is as if the whole episode never happened, which begs the continuing question: why did it happen at all?
When it comes out in a couple years, the 30 for 30 on the failed Kaepernick workout of Nov. 2019 should be quite compelling.
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