For four days, the reasoning behind the NFL’s breakneck preparations for a Colin Kaepernick workout was a mystery to most anyone residing beyond the walls of the league’s Park Avenue office. From front-office executives to curious players and even Kaepernick himself, there seemed to be a lack of logic.
Why was the NFL doing this, especially after three years and a collusion settlement?
From Tuesday afternoon to Friday night, speculation was rampant. Maybe it was commissioner Roger Goodell trying to make amends or new league partner Jay-Z trying to build a bridge. Maybe it was an oddly timed public relations ploy, engineered to help a team find cover as it mulled a Kaepernick signing. Or maybe it was nothing more than another miscalculation by a league that has never gotten the Kaepernick situation right.
Then came Saturday’s revelation: This workout was a Trojan horse. And when the belly of the ruse finally opened up, all the lawyers came tumbling out.
Waiver for Colin Kaepernick wasn’t standard
If you’re measured enough to stop shouting on social media about how Kaepernick “doesn’t want to play,” you might take the time to notice the actual document exchanges that took place over this past weekend and follow the NFL lawyers. One way or the other, they’ll end up making the requests and producing the documents that explain what’s going on.
The league’s legal counselors did exactly that as the week went on, by advancing a workout waiver that reached beyond the injury protections that are typically afforded to the NFL and its teams. By now, the NFL’s waiver has made the rounds all over the internet — getting pilloried by a swath of lawyers whose job isn’t shouting hot takes on morning talk shows. What most of them are seeing is this: A document that pushed past normal injury protections and contained language that, had Kaepernick signed it, could have given the league footing to argue that he’d signed away some of his employment protections.
The NFL made some attempts to cover for those efforts, of course. In a release on Saturday expressing disappointment at Kaepernick pulling out of the league’s workout, the NFL acknowledged the waiver being a point of contention. There was a key phrase contained in the release. Here’s what the NFL said:
“On Wednesday, we sent Colin’s representatives 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. At noon today, Colin’s representatives sent a completely rewritten and insufficient waiver.”
Note the phrase “based on the waiver used by National Invitational Camp at all NFL Combines”. Two words – “based on” – are very interesting.
Here’s why the league had to include them: The NFL used an outside law firm to craft the release for this event. Despite the suggestion in its release, it didn’t use typical language in liability waivers. Instead, it went a step further and created its own.
Why? I’m willing to bet that it had everything to do with inserting clauses that could allow the NFL to evade future litigation tied to employment claims.
Why wouldn’t Kaepernick sign the NFL’s waiver?
In the middle of this supposedly generous (and unprecedented!) offer to give Kaepernick a league-hosted workout, the lawyers slipped clauses into a liability release that would create a foothold to fight against litigation under state and federal employment laws.
I believe this is the answer to why the NFL put this workout together. It created multiple outcomes that could all be weaponized against the league’s Kaepernick problem.
If Kaepernick said no to the workout or pulled out for any reason, the NFL could say “we tried” and there would be more than a few media personalities ready to carry that water. And if by some masterstroke Kaepernick’s lawyers said yes to the waiver, the NFL would have a signed document guarding against a lawsuit stemming from state and federal employment laws.
The workout was the Trojan horse.
The NFL’s weapon was the waiver planted inside it.
And a sweeping victory was one Kaepernick signature away.
Given the broad language of the waiver, the NFL could have altered any agreements made with Kaepernick, regardless of how damaging those changes or actions might have been. For example, the league could have refused to release tapes of the workout with no recourse. Or the teams could have been allowed to instruct Kaepernick that he would be unemployable if he knelt for the national anthem. The NFL could have even instructed all teams not to sign Kaepernick following the workout. While all of those sound preposterous and unlikely, the fact that there would have been no repercussions for any of those actions speaks to how sweeping the waiver was.
Getting a signature on that agreement blew up, of course. Kaepernick’s lawyers and agent received the first draft of the waiver on Wednesday and had dissected the potential impacts of it by Friday. By that point, the NFL knew it was unlikely Kaepernick was going to sign it. In the final hours before the workout, the league’s lawyers delivered the only message that mattered: The NFL would accept only its version of the waiver, refusing any edits from Kaepernick’s legal camp. That made sense, considering the NFL hired lawyers to perfectly craft the document for broad protections. It simply wasn’t going to allow anything to be changed at that stage. Especially when the alternative is Kaepernick pulling the plug on the workout — which can be spun in favor of the NFL easily.
Of all the takeaways from this thing, that’s the one that resonates. The league went to great lengths to give itself a tangible defense against future litigation. And if nothing else, that shows the NFL believes at least one of two things. Either that Kaepernick’s settled collusion case isn’t the last time his lawyers open fire on the league, or that the NFL may be vulnerable to a federal lawsuit. Indeed, the league may believe both.
Perhaps the collusion settlement was just the start. Maybe the next step doesn’t end with Colin Kaepernick on an NFL field, instead engaging the league on a whole other landscape.
In front of a judge and a jury. Inside a federal court. And nastier than ever.
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