Colin Kaepernick’s Workout: A Sham Dressed Up As An Opportunity

Everything is Political Even When It’s Not

Colin Kaepernick’s November 16, 2019 workout was supposed to be all about football. Of course, it was anything but (ask Jerry Jones).

Unless you’ve been living in a hole in the last couple of weeks, you know that Mr. Kaepernick’s chances of ever rejoining the NFL were all but destroyed after the November 16, 2019 circus in Georgia. We wanted to know why. We heard rumors that there were some legal logistics that couldn’t be worked out, but that sounded suspect. So, we did a little more digging to see what was going on.

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Before I go on, it should be noted that (1) we are personal injury and employment lawyers, NOT sports attorneys; (2) the information contained herein is based on secondhand reporting that we assume has been vetted and fact-checked, but we have not independently verified it; and (3) we are not football experts. That said, here’s what we found:

Kaepernick was approached the Tuesday before the Saturday workout.

According to the New York Times, Kap’s team was approached the Tuesday before the Saturday that the workout was scheduled to take place and given two – yes two – hours to decide whether or not he wanted to participate.

You can’t rush contracts.

No matter your position on Kap’s politics, you have to admit that 2 hours is no time to consider what is purported to be a serious offer to try out for 32 NFL teams. Nevertheless, Kap and his team opted to go forward. After all, the man hadn’t played football in 3 years and was anxious to get back to work.

Kaepernick supplied his own receivers.

According to reporting from USA Today, the NFL, “wouldn’t reveal” which receivers they were going to send to the workout, so Kaepernick decided to fly in his own receivers on his own dime.

The NFL wanted Kaepernick to sign an “unusual” waiver.

According to Sports Illustrated, the waiver that the NFL wanted Kaepernick to sign was markedly different from the one normally used in these scenarios, or at least that which is customary. And it’s not like Kaepernick wasn’t willing to sign any waiver. He even brought his own. According to SI:

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.

Contract language matters – a lot.

But the NFL, for reasons that still confound, was insistent that employment issues be included in the waiver. Now, in the NFL’s defense, a narrow reading of the clause in their waiver could be reasonably construed to apply to the workout only. Kaepernick’s lawyers thought differently. Here is one of the contested NFL waiver clauses:

In consideration for the opportunity to participate in the Workout, Player . . . agrees to indemnify and hold harmless [everyone and their dog] from and against 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 . . . .

“Related directly or indirectly.”

We severely edited that clause for brevity’s sake, but here’s a link to the purported NFL release. Check out paragraph 7 specifically. The problem is the “directly or indirectly” language. Kaepernick’s team ultimately felt that the language was too broad and that it could potentially foreclose Kaepernick from bringing an employment lawsuit in the future were he to be hired by an NFL team in the future. Here is an edited version of the statement his team issued in response to the failed negotiations:

Most recently, the NFL has demanded that as a precondition to the workout, Mr. Kaepernick sign an unusual liability waiver that addresses employment-related issues and rejected the standard liability waiver from physical injury proposed by Mr. Kaepernick’s representatives. Additionally, Mr. Kaepernick requested all media be allowed into the workout to observe and film it and for an independent film crew to be there to ensure transparency. The NFL denied this request. Based on the prior conduct by the NFL league office, Mr. Kaepernick simply asks for a transparent and open process which is why a new location has been selected for today. Mr. Kaepernick looks forward to seeing the representatives from the clubs today.”

I might be paranoid, but . . .

So, the NFL approached Kaepernick the Tuesday before the proposed Saturday workout; gives him 2 hours to decide; won’t disclose to him who the receivers are going to be; and it won’t budge on the employment language in the waiver. As the old saying goes, “just because I’m paranoid doesn’t mean they’re not out to get me.”

Furthermore, as already alluded to in Kaepernick’s team’s statement, the NFL wouldn’t even allow media access.

A sham by any other name would smell as sour.

Call it a workout. Call it a sham. In the end, only 7 teams showed up to the rescheduled “workout” which took place an hour away, and an hour later than originally scheduled at a high school football field. What started out looking like an ill-planned attempt to give Kaepernick a shot at a team slot looks more like it was a sham from the beginning.

If you’re negotiating a contract, get a lawyer.

Not many of us will be in a position to negotiate the terms of an NFL workout waiver in our lifetimes. But many of you will be confronted with signing a severance agreement, an employment contract, a confidential settlement agreement, or some other important document with serious life consequences. If we’ve learned nothing, we’ve learned that having a lawyer in those moments is critical.

If you or a loved one are faced with negotiating a severance agreement, an employment contract, or a confidential settlement agreement, please contact Jeffry Dougan or Malissa Williams at Marathon Law today. 303-704-1222.