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Colin Kaepernick Workout: The most complete analysis you will find anywhere

November 20, 2019
by Larry Brown
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Colin Kaepernick

There have been many questions about the NFL’s motivation for hosting a private workout for Colin Kaepernick, which became all the talk throughout the sports world last week and over the weekend.

To recap: Kaepernick’s camp said they hadn’t heard from the league in several months. Supposedly out of the blue, the league called them on Tuesday, November 12, to offer the opportunity for Kaepernick to work out in front of NFL teams in Atlanta on Saturday, November 16, and they gave him two hours to respond to the offer. The league reportedly had already prepared some prominent NFL reporters the week before to be ready for a big news announcement that would come in the following days. That news came when select reporters were told on Tuesday that Kaepernick would participate in an NFL-backed workout that weekend.

From Tuesday to Saturday, the two sides negotiated various points about Saturday’s workout. The matter ended with Kaepernick’s side announcing the quarterback would not work out in the league-sponsored event and instead would host a workout at a nearby high school, with teams invited to attend. 25 teams were set to attend the workout at the Atlanta Falcons’ facility, but according to reports, only representatives from 6-8 teams attended the workout at the high school facility.

In the days since Saturday’s workout fell apart, Larry Brown Sports has combed through various reports and spoken with different sources to gain an understanding of exactly what happened. This is our best analysis of the events.

NFL’S MOTIVATION FOR HOSTING THE WORKOUT

The central question here is: why? Why did the NFL reach out to Kaepernick out of nowhere to invite him to work out at a league-organized event, which is something they do not ordinarily do for free agent players?

Here are some of the suggestions given for the league’s motivation.

Theory 1 – The NFL acted out of genuinely pure intentions to help out Kaepernick

The title says it all: maybe after a few years of controversy, the league decided it was time to give Kaepernick a shot to re-enter the NFL. But I doubt anyone — including the NFL — would tell you with a straight face that this was the primary reason for the workout. OK, maybe Roger Goodell would tell you that with a straight face. Have you seen him talk to the media? The guy doesn’t blink!

But if you believe the NFL had such great intentions with the workout, why would the league then only give Kaepernick two hours to answer, four days to prepare, and not work with his team ahead of time to hammer out many of the details surrounding the workout? The NFL’s lack of coordination with Kaepernick’s team seems to dismiss the notion that the NFL’s intentions were so genuine.

Theory 2 – Jay-Z pushed for it, possibly to help improve his reputation

When Jay-Z officially partnered with the NFL in August, the music mogul took heat from many in the black community, who viewed him as a sellout. The same guy who once wore a Kaepernick jersey on “SNL” now was partners with the NFL two years later? That didn’t sit well with many. But Jay-Z has always supported Kaepernick, even if he disagrees with the quarterback on the best way to move forward. He reportedly had pushed for Kaepernick to get another shot, so it would make sense for him to have helped push for this over the past few months.

This theory seemed plausible, but much like the issue with Theory 1, the NFL’s initial one-sided handling of the situation suggests their intentions were not to genuinely help out the quarterback.

Theory 3 – The league takes the P.R. hit for teams interested in the QB

This theory goes as follows: some NFL teams expressed to the league that they had interest in Kaepernick but feared negative publicity/fan backlash from reaching out to the quarterback directly, so the league would step in and host the workout to provide cover for these teams. By doing so, the league seemingly puts their stamp of approval for teams to interact with the quarterback, lessening the fan backlash the individual teams would receive.

This too seems plausible. However, the basis of the league’s anti-collusion argument is that teams act completely independently when it comes to personnel decisions and don’t coordinate with each other or the league. If teams have to run it by the league first before contacting Kaepernick, that would run counter to the league’s entire anti-collusion argument. Also, if the league were chiefly motivated by a desire to let interested teams get a look at the QB, wouldn’t they also have been more accommodating to requests from Kaepernick’s side?

Theory 4 – The league is working to protect against a second lawsuit

On Saturday, Pro Football Talk’s Mike Florio wrote that he felt the workout was arranged to help the league avoid a second lawsuit from Kaepernick.

I had never thought that this was even possible because Kaepernick already sued the league alleging collusion and settled the suit in early 2019. Wouldn’t the confidential settlement have prevented Kaepernick from suing the league again? Maybe not.

Both Florio and SI legal analyst Michael McCann have said a second lawsuit might be possible, so long as the February 2019 settlement only covered Kaepernick’s unemployment from 2017-February 2019. Florio even said that the NFL had failed to buy out Kaepernick’s future employment, and that the league’s general counsel, Jeff Pash, recognized this as a liability.

Sources with whom Larry Brown Sports spoke also suggested a second employment-related lawsuit against the NFL would be possible.

This scenario makes sense too when you consider that an initial report suggested Kaepernick’s settlement ranged between $60-$80 million, while a subsequent report a month later said the settlement was for under $10 million.

The under $10 million figure seems to match two years worth of lost wages for the quarterback, compared to $60-$80 million, which would seem more like a buyout of all past and future career earnings.

THE MISSING PUZZLE PIECE

Considering that theories 1-3 are based on the league suddenly deciding to act benevolently towards a player who sued them for collusion, and that the negotiations were so one-sided, theory 4 makes the most sense: the league seemed to be protecting against a future lawsuit. But the question is: why now? Why did the NFL suddenly reach out to arrange a workout for the quarterback? The answer seems to stem from a press release from Kaepernick’s side a month earlier.

On Thursday, October 10, Adam Schefter tweeted out a document that came from Colin Kaepernick’s side. The document was titled “Facts to Address the False Narratives Regarding Colin Kaepernick.”

Among other things, the document affirmed that Kaepernick could legally seek employment in the league, still wants to play, hasn’t had any workouts, and said that Kaepernick’s agent had reached out to all 32 teams and received no response.

The release of the document seemed confusing. Why would Kaepernick’s team send it out? What was the purpose for it and the timing behind it? There hadn’t been any published stories about Kaepernick in the media that pushed “false narratives” the document supposedly addressed.

Where was this coming from and why was it out there?

Finally, in light of the workout and talk that Kaepernick could file a second lawsuit against the NFL for collusion, it hit me: perhaps this statement was distributed in an effort to lay the groundwork for a second lawsuit. Why else would they share that Kaepernick is still ready, still qualified, and still hadn’t heard from any teams despite reaching out to them all? It seems this was done to help establish that the same conditions that led to the first lawsuit were still present.

In response, the NFL probably saw this on October 10 and recognized that Kaepernick’s team was setting the grounds for a second lawsuit. They probably got together, thought for a week, and started to devise a plan for how to combat the second suit. That plan (as we came to find out) involved inviting Kaepernick to an NFL-backed workout, where they would ask him to sign a legal waiver that included information about his employment status. Then they probably had lawyers work on drafting the legal waiver for Kaepernick to sign — a report said the league had outside counsel work on the document — and that probably took a few weeks.

Then, about four weeks after Kaepernick’s team released the document, the NFL reportedly began calling select reporters to tell them to be ready for some big news the following Tuesday.

Exactly 33 days after this press release from Kaepernick’s camp was distributed, the NFL responded with its workout offer.

If you believe this was the missing piece and the antecedent to the NFL’s well thought-out workout scheme, then you understand that the league did not merely reach out to Kaepernick’s camp out of the blue, but they were responding to what they believed was a legal threat.

THE NFL’S EXPERTLY-CONCEIVED WIN-WIN PLAN

If the NFL’s goal in holding the workout was to mitigate a legal threat from Kaepernick’s camp, they failed in that they were unable to get him to sign their legal release, but they succeeded in every other way. The league created a situation where they would win no matter what.

Scenario A) NFL holds workout; Kaepernick attends and signs legal waiver

In this scenario, the NFL wins the public relations game because they look like they are helping out the quarterback by holding an unprecedented free agent workout for him. They would also win the legal game by having the quarterback sign a waiver that would make it harder to sue them in the future over unemployment claims.

Scenario B) NFL holds workout; Kaepernick does not attend

In this scenario, which did play out, the NFL still won in terms of public relations. They made an effort to help the quarterback, who did not cooperate. And while Kaepernick preserved his legal rights, he ended up looking bad publicly to most people (except his supporters), who believe he turned down his best chance to get back into the league — which has been his stated goal.

The league also received the added legal benefit from the separate workout because 25 teams were set to attend their workout, while only 6-8 teams attended Kaepernick’s workout. That, they could argue, is proof that Kaepernick hurt his own chances of getting back in the league.

KAEPERNICK’S REASONS FOR NOT ATTENDING NFL’S WORKOUT

Kaepernick’s camp on Saturday afternoon cited two reasons why
they would be holding a workout at a high school rather than attend the NFL’s workout. In that press release, Kaepernick’s attorney and agent, whose names appeared on the release, cited two reasons for holding a separate workout:

1) issues with the NFL’s legal waiver

2) a desire for more transparency with the media’s presence

We will address both of these reasons and explore their legitimacy.

THE NFL’S LEGAL DOCUMENT

The NFL and Kaepernick’s team traded statements regarding the legal waiver.

In their statement, Kaepernick’s side said the waiver was an “unusual liability waiver that addresses employment-related issues and rejected the standard liability waiver from physical injury proposed by Mr. Kaepernick’s representatives.”

In a response, the NFL said “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.”

Pro Football Talk obtained the waiver the NFL sent Kaepernick, as well as a standard tryout waiver from one NFL team (these can vary by team). You can read about both at the links.

We had legal expert Andrew J. Botros, an attorney at Bickford Blado and Botros, look at the waiver the NFL sent Kaepernick’s team.

Botros commended the NFL’s waiver for its broad legal language and the all-encompassing protections it sought. He said on the surface that he would not ascribe nefarious intentions to the league, but he would have to know how the negotiations between the parties went before determining whether there was bad faith on the league’s part.

Botros told Larry Brown Sports that he would not advise his client to sign such a waiver, not without certain changes. The language from the NFL’s waiver that he took issue with included a phrase that said Kaepernick would release the league from claims “… related directly or indirectly to the Workout.”

Because that language is unclear, Botros says you could open up future litigation over what is a claim “indirectly” related to the workout. He suggested adding language that would specify that the “agreement in no way limits the right of Player to pursue future lost employment as contemplated in the agreement …” before having Kaepernick sign it.

WOULD SIGNING THE NFL’S WAIVER HAVE PREVENTED KAEPERNICK FROM FILING A SECOND LAWSUIT?

Let’s say Kaepernick wanted to play in the NFL again so badly that he signed the waiver anyhow and decided to take his chances. Would signing the waiver have prevented him from filing a second lawsuit? No, but it could have negative consequences.

Botros told Larry Brown Sports that if Kaepernick filed a second lawsuit even after signing the waiver, the league would likely file a motion to dismiss the lawsuit on grounds that there was a release of liability.

The judge presiding over the case would then decide as a matter of law whether Kaepernick is precluded from filing the suit. If the answer is yes, the lawsuit would be tossed. If no, then it would go to trial.

Considering that Kaepernick’s side has no control over which judge gets assigned the case (different judges may have different political biases and tendencies), there would be great risk in signing the waiver.

WERE KAEPERNICK’S GRIPES LEGITIMATE?

Kaepernick had two main gripes about the workout: the legal waiver and the lack of media presence.

We just outlined why the gripe about the legal waiver was completely legitimate and why signing the waiver would have been inadvisable. But what about the issue of media presence and claims of transparency? That I do not see as quite so legitimate.

According to Howard Bryant, Kaepernick’s team was told by the NFL there would be no media access to the workout and agreed to those terms.

If Kaepernick’s team agreed to no media presence, why did they later reverse course? Their explanation is that they were later told they could not have their own team film the workout, so they wanted the media there to make the process more transparent.

If they were so worried about having their own team film it, why didn’t they address that concern earlier? No answer has been given for that, though it’s possible there were so many questions that came up over the ensuing days that they only later thought of it.

Also, apparently they wanted to film the workout themselves for transparency because they feared the NFL sending tape to its clubs that, in an extreme case, only contained Kaepernick’s worst throws and therefore made him look bad.

This is a concern that I do not find to be in the least bit reasonable or legitimate. There were going to be representatives from 25 teams at the workout, plus camera crews, and more personnel. Are you really telling me that if the NFL tried to provide negatively-edited video of the workout to team executives not present that this would have transpired without any backlash? Not a chance.

First, you have all these team representatives who witnessed the workout who would have been able to say otherwise. Then you have NFL executives who would have also said whether the video they received was bogus. Between TMZ, Adam Schefter, Pro Football Talk, Larry Brown Sports, and other outlets, do you really think a negative video distributed by the NFL would not have been leaked and published? No way.

Are you telling me the same NFC West team source who told Bleacher Report’s Mike Freeman that the workout was a “sham” and that the league was “full of s—” wouldn’t also leak that a video was doctored? Are you telling me the source who told Schefter that Kaepernick’s arm looked “elite” would have kept his or her mouth shut? And if the NFL were caught editing video of the workout to make Kaepernick look bad, they’d be sued in two seconds, with plenty of eyewitnesses ready to dispute the video. Kaepernick’s team could write down exactly what happened in the workout, and if that differed at all with the video, that would probably be an easy lawsuit to win.

THE FAIR WAY TO ADDRESS ‘HOW BADLY DOES HE WANT TO PLAY?’ QUESTIONS

In a video released on social media, ESPN’s Stephen A. Smith said the events on Saturday proved Kaepernick does not want to play. NBC’s Tony Dungy asked on “Football Night in America” how badly Kaepernick wants to play and said that question went unanswered for curious teams. CBS’ NFL pregame show discussed the same thing.

If you are addressing the question of how badly Kaepernick wants to play, you should address it in a fair manner. And a fair manner includes discussion of the legal waiver. The answer to the question would be “he does not want to play in the NFL badly enough to compromise his potential legal rights to a future claim against the league.”

Kaepernick’s free agent situation reminds me of Michael Vick’s, though the circumstances of their absences from the league differ greatly. Vick went to prison for 21 months over the dog fighting scandal and missed all of the 2007 and 2008 seasons. Kaepernick missed all of the 2017 and 2018 seasons. Vick signed a one-year non-guaranteed deal worth up to $1.6 million with a $5 million team option for the following season in August 2009 with the Eagles. The Eagles received negative attention from the move, but Vick mostly avoided headlines thereafter, worked quietly as a backup, and was such a good teammate he was unanimously awarded the Ed Block Courage Award by his teammates in 2009. This is the kind of example/model coaches and people like Dungy are probably thinking of when they ask how badly Kaepernick wants it — enough to take a $1.6 million deal with no guarantees and work quietly as a backup without creating headlines?

DID KAEPERNICK EVER INTEND TO GO THROUGH WITH NFL’S WORKOUT?

We have already established my belief that the NFL set up the workout for legal protection purposes. While some will say that proves Kaepernick is a victim of their scam, I won’t go that far. I also believe Kaepernick showed plenty of signs that he never really intended to go through with the NFL’s workout.

From the moment he shared news of the workout on his social media account last Tuesday, Kaepernick was already preparing the storyline for the focus of his team’s complaint. The last phrase used by Kaepernick in his tweet said “can’t wait to see the head coaches and GMs on Saturday.”

That read to me very much like, not, “can’t wait to see you at my birthday party!” but instead, “can’t wait to see what present you got me.”

Was Kaepernick looking to work out for interested teams, or was he more focused on taking roll? The next day, this issue very much came to the forefront because Schefter reported the NFL had gone back on an agreement to provide Kaepernick’s team with a list of workout attendees.

Why was Kaepernick’s camp so focused on getting this list and whether head coaches and GMs would attend? They say it was to ensure legitimacy, but that doesn’t make much sense. If you’re a free agent who hasn’t played in the league in years, you’re not really in a position to dictate who will and won’t attend your workout; you just attend, perform, and hope something good comes out of it. But maybe they were insisting on the documentation because such paperwork could be used in a future lawsuit to aid their argument that if no big decision-makers were in attendance, that was more of a sign the workout was not really helping job efforts.

If the NFL were playing legal games with the workout, then so too was Kaepernick’s side, it seems.

Kaepernick’s camp was also vocal through their sources in complaining about the day of the workout. Their complaint was that head coaches and executives would be unlikely to attend on a Saturday — head coaches because they’re preparing for a game the next day, and executives because they’re scouting college games on Saturdays. Kaepernick’s camp suggested to the NFL why not hold the workout on a Tuesday — the standard day for NFL teams to hold free agent workouts — or the following Saturday.

Again, this seems to me like a complaint for complaining sake rather than for legitimate reasons.

Head coaches would be highly unlikely to leave their own teams at any point during the NFL season to travel to watch a free agent workout. Coaches and team executives have workouts at their own facilities on Tuesday to conduct. Would anyone really expect them to leave their teams? I don’t find that to be realistic.

And if holding the workout on Saturday was bad because coaches have games the next day to prepare for and executives have college games to scout, how would the following Saturday — which Kaepernick’s camp suggested — have helped in those regards? Coaches still wouldn’t attend. People say more time would have allowed a greater chance for people to rearrange plans. But I have news for you – scouts already have their scouting schedules mapped out in advance and already had plans for what games they were going to attend that Saturday or the following Saturday.

Bottom line: any executive really interested in watching Kaepernick would have found a way to make it happen whether the workout were 4 or 11 days away.

Then, as early as Thursday morning — fewer than 48 hours after the offer was extended and more than 48 hours away from the time the workout was set to take place — Adam Schefter said he was skeptical the workout would take place. Schefter doesn’t offer opinions without having very good information and reasoning behind them.

It seems to me that just as much as the NFL’s motivation for holding the workout was a legal strategy, Kaepernick’s team immediately worked on ways to justify to the public why they would not be going through with the workout.

As for their backup plan to hold a workout at a nearby high school, Howard Bryant says that was conceived a day before.

WHY KAEPERNICK IS BETTER SERVED NOT PLAYING IN THE NFL

I actually believe that Kaepernick not working out for the NFL or being in the league serves his best interest. Kaepernick was a bottom-tier starting quarterback when he last played in the league. He would probably be a backup-level quarterback now, with the upside of regaining starter status.

Since kneeling for the national anthem, Kaepernick has become a historic figure. He is the face of a social movement, a well-known national symbol, and both highly beloved/respected and highly disliked.

He is a martyr who has stood up to the NFL, sued them (and won via his settlement in the eyes of his fans), and is standing up to “the man.”

If he signed in the NFL, he would probably be a backup quarterback or third-string/practice squad guy to start as he worked his way back. Unless the starting quarterback plays poorly or gets injured, backup/third-string quarterbacks are largely irrelevant and inconsequential. Serving in that role would transition Kaepernick from a mythical-like figure to just a Brian Hoyer. There’s nothing special about that. Plus, there would be some Kaepernick supporters who would criticize him in the same way Eric Reid gets criticized for taking checks from the same league he claims is wrong and treats people unfairly.

But not going through with the workout further endears Kaepernick to his fans and shows them he is continuing to stand up to the league. That makes him a bigger symbol as an activist, which is even better for his sponsor, Nike, because fans will want to be more and more tied to Kaepernick’s brand.

Not doing the workout also has the benefit of allowing Kaepernick the opportunity to pursue a second legal claim against the league.

What sounds better to you:

A) Get paid backup QB money and be irrelevant while alienating some of your fans, with the eventual hope of becoming a starter again

or

B) Stick it to the NFL, make your fans love you even more, gain more brand strength for your Nike deal, and also pick up money by suing the league for collusion a second time?

Option B just seems to make more sense.

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