Much has been written and said over the past week about the Colin Kaepernick workout waiver. If anything had been written or said last week between the league and Kaepernick’s camp, the concerns regarding the waiver may have been resolved before it was time to launch the workout at the Falcons’ facility.
Last Wednesday, the league sent to Kaepernick’s representatives the waiver that PFT published on Sunday morning — and that was cited by Kaepernick’s camp last Saturday when pulling the plug on the league-organized workout. As PFT and others have said, allowing Kaepernick to sign the release in light of the history between the parties would have been irresponsible at best, malpractice at worst.
Given the unique history between the parties, which has included one multi-million-dollar piece of employment litigation and quite possibly will include another, it became critical for his lawyers to carefully read the waiver and to ensure that nothing in the document would limit or eliminate his ability to file a second grievance for collusion regarding his ongoing lack of legitimate chances with specific teams since the settlement of the first grievance. But it also became critical for his lawyers to immediately engage the league regarding any concerns, given the compressed time frame under which both sides were operating.
Per multiple sources with knowledge of the situation, Kaepernick’s representatives did not communicate specific concerns regarding the potential breadth of the release to the league on Wednesday or Thursday. On Friday, Kaepernick’s representatives told the league that there were minor concerns regarding the release. By Saturday morning, specific complaints about the proposed release still had not been articulated.
Ultimately, they never were. Instead, Kaepernick’s representatives proposed a completely different release, a one-page document that releases the NFL, Hue Jackson, Joe Philbin, and all 32 teams and team representatives from “any and all injury, disability, death, or loss or damage to person or property, whether arising from the negligence of the [released parties] or otherwise.”
Although the league’s refusal to allow Kaepernick to bring his own camera crew did as much or more to derail the league-organized workout, the unresolved waiver issue didn’t help. And because Kaepernick’s representatives never engaged the league’s lawyers for a line-by-line review of the release proposed by the NFL, the concerns were never crystallized between the parties and thus never resolved.
Here’s what should have happened. After getting the release last Wednesday, Kaepernick’s representatives should have immediately contacted the league to express concerns regarding its terms, especially since Kaepernick’s representatives were concerned that the document had been drafted broadly enough to wipe out a second potential collusion case. Revisions, deletions, and/or additions should have been immediately suggested to address the possibility that the document, if signed, potentially would have waived Kaepernick’s ability to file a second collusion grievance for the league’s failure to consider him for employment after the settlement of his first grievance in February 2019.
Kaepernick’s representatives believe that the release was drafted specifically to wipe out Kaepernick’s collusion rights that may have arisen since the settlement of his first collusion case. The NFL believes that the proposed release would not have undermined Kaepernick’s rights unrelated to the workout itself, and that if he had signed it, he would not have waived any right to file a second collusion lawsuit.
The truth is that the NFL’s release is indeed broad enough to raise a red flag, given that the two sides spent months litigating his collusion case, with the Commissioner and multiple owners being compelled to testify under oath. The truth also is that any concerns regarding the NFL’s release should have been addressed right away. Lawyers routinely haggle over the language of documents by exchanging emails or other communications addressing concerns and proposing ideas for addressing them.
If the NFL would have agreed to revise the document to preserve Kaepernick’s potential employment-related claims, problem solved. If the NFL would have refused to make such revisions, the battle lines would have been firmly drawn. Because Kaepernick’s representatives waited too long to engage the NFL on this issue — and because they never presented specific concerns about the league’s release — neither had a chance to occur.
Which means that some will be able to claim that the NFL’s release was a Trojan horse, others will be able to wave around the waiver signed by Kaepernick in 2011 and ask “what’s the difference?,” and that there’s no way to firmly answer the question because Kaepernick’s camp didn’t smoke out the league’s position and motivation by immediately identifying the concerns the waiver raised.