- Legalese, mistrust and late negotiating: How Colin Kaepernick and the NFL broke apart on workout
- Waylaid by waivers
- Kaepernick camp’s rebuttal
- After Colin Kaepernick’s Workout, What Happens Next?
- A POINT OF CONTENTION
- SO, ABOUT THAT LIABILITY WAIVER
- WHICH TEAMS CAME TO THE SECOND WORKOUT?
- HOW DID KAEPERNICK ACTUALLY LOOK THROWING THE BALL?
- SO, WHAT HAPPENS NOW?
Legalese, mistrust and late negotiating: How Colin Kaepernick and the NFL broke apart on workout
SportsPulse: Dan Wolken was in the midst of the chaos in Atlanta when Colin Kaepernick changed his workout plans from what the NFL planned. After the workout he feels the two sides couldn't be farther apart. USA TODAY
The text message came at 2:28 p.m. ET on Saturday, ending two hours of silence.
“Sorry,” the message sent by Colin Kaepernick’s legal team to an NFL attorney said. “We’re going to go in a different direction.”
A process that unexpectedly commenced four days earlier had ended just as abruptly.
The initial liability waiver proposal from the league had arrived via email that Wednesday – the day after the NFL announced its impromptu tryout for the exiled quarterback. Sporadic haggling followed, concessions were made and then at 12:30 p.m., two and a half hours before workout was scheduled to begin, Kaepernick’s camp sent a counterproposal, which the league refused to accept.
That’s when Kaepernick’s team went silent and the quarterback and his connections in the area sprang into action.
Kaepernick contacted people he knew from recent speaking engagements at Atlanta-area schools. He also reached out to fraternity brothers in the area. They worked together to organize the logistics – security, live stream, press release – for him to hold his own tryout. The location: Charles Drew High School.
Shortly after that text, members of Kaepernick’s inner circle announced on social media he would hold an open workout roughly 60 miles from the Atlanta Falcons’ facility, where the session had originally been scheduled to take place.
USA TODAY Sports spoke to seven people connected to the NFL and Kaepernick. They described the frantic days and hours that led to the breakdown between the two sides and how the alternate workout came together. The people spoke on the condition of anonymity because of the sensitive nature of the topic.
USA TODAY Sports also obtained a copy of the NFL's proposed waiver, and while that document was the primary source of contention last week, the workout was doomed long before the waiver was created.
Kaepernick has been the league since 2016, when the then-San Francisco 49ers quarterback started to protest police brutality against people of color and other social injustices by kneeling during the national anthem. Since then, there have been accusations, denials and litigation between the NFL and Kaepernick, and ultimately an intense distrust between both parties.
Colin Kaepernick looks on during the workout held at Charles R. Drew High School on November 16, 2019 in Riverdale, Georgia. (Photo: Carmen Mandato, Getty Images)
Waylaid by waivers
Wording on liability waivers for tryouts can differ from team to team. The intention is to ensure players can’t demand workers’ compensation for an injury suffered during a workout because they are not team employees.
But the Kaepernick workout was to be un any other – and so was the waiver.
A review of the waiver sent to Kaepernick on Nov. 13 as well as waivers used by two NFL teams and the one used by the NFL for the scouting combine shows how the league blended the wording in those previously used documents.
However, multiple portions of the 13-paragraph document concerned Kaepernick, who was already skeptical because no team agreed to a tryout in the past two-plus years.
So Kaepernick and his team wondered: Why now? When officials of multiple teams informed his representatives they too didn’t understand the reason or timing of the NFL-staged workout, Kaepernick’s suspicion deepened.
Two portions of the waiver in particular raised red flags for Kaepernick’s camp.
The first was the paragraph that required Kaepernick agree that “he has been made no promise of employment” by participating in the workout.That wording wasn't un the language that appeared in waivers for teams or the combine, including the one Kaepernick signed to participate in the event in 2011.
Kaepernick’s representatives, however, viewed the portion as problematic. They wanted to ensure they were not signing something that could work as an employment release. Kaepernick’s representatives also didn’t understand their client signing a waiver releasing all 32 teams when the league had yet to provide a list of personnel who planned to attend the workout.
Paragraph 7 of the waiver presented another problem.
Kaepernick had to agree to “indemnify and hold harmless” the individuals running the workout, the NFL and its 32 teams “from and against any and all claims …
caused by, arising , occurring during, or related directly or indirectly to the Workout, Players' presence at the Facility, and any medical treatment or services rendered in connection with or necessitated by Players' participation in the Workout.”
But Kaepernick and his legal team saw that as more than just injury-related waiver language.
The phrase “arising , occurring during, or related directly or indirectly to the Workout,” was too broad for the Kaepernick camp’s liking, though largely similar terminology was included in team and combine waivers.
The concern: what constitutes as “directly or indirectly”? If Kaepernick went unsigned and later learned that the teams attending the workout had agreed not to sign him, could lawyers point to that line saying he had waived rights of anything directly or indirectly related to the tryout? What other rights could fall under that umbrella?
Kaepernick camp’s rebuttal
By Friday night, concessions had been made, including allowing Kaepernick to bring his own wide receivers and to change the order of some workout exercises. But disagreements remained on the video footage and waiver language.
The NFL planned on using the Falcons’ video crew. But Kaepernick worried that the recording could be selectively edited, removing his best throws, and that the league could then leak the footage to media outlets to justify teams not signing him. Kaepernick wanted to either bring his own crew or permit media members to attend the session.
The league offered Kaepernick's representatives the chance to sit with the Falcons video editor to ensure footage wasn’t removed during editing.
Around 12:03 p.m. Saturday, Kaepernick’s representatives sent a follow-up email to the NFL seeking media access since the film crew request had been denied.
But, hoping to avoid a media circus, the league denied that request as well.
Kaepernick's camp made its waiver counter-proposal at 12:30 p.m. But the quarterback’s team had used a three-paragraph agreement used by multiple colleges in Georgia for hosting tryout players.
The key statement read, “I knowingly and freely assume all such risk, both known and unknown, even if arising from negligence of releases or by activities or actions of others in connection with physical activity relating to the workout and assuming full responsibility for all activities and actions.”
The NFL deemed such a waiver inadequate. Most importantly, it didn’t feature the elements that would absolve the league and its teams, and specifically the Falcons, of liability for workers’ compensation.
By that point, frustrations ran high on both sides. From the league’s standpoint, more communication between Wednesday and Friday could have solved some of the issues. But Kaepernick’s side maintained that each matter should have been agreed to before the NFL announced the workout in the first place.
After completing his workout, Kaepernick briefly addressed the media and eight scouts who decided to attend his relocated workout before signing autographs.
He had showcased his skills to talent evaluators and the world via live stream.
Within 24 hours, Kaepernick’s agent sent a copy of the workout to all 32 NFL teams, informing them his client is willing to come to any facility for a follow-up interview.
As of Thursday, however, no visits had been scheduled.
Instead, the only Kaepernick-related activity consisted of media reports and sports talk debates discussing the waivers and blame.
Regardless of either side's motives, one thing is clear: A straightforward football workout was going to be almost impossible to achieve.
As even Cowboys owner Jerry Jones put it during a radio appearance, “that situation probably from the get-go had a lot more that wasn’t about football involved in it, and consequently we got the results of that dynamic.”
Follow Mike Jones on @ByMikeJones.
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After Colin Kaepernick’s Workout, What Happens Next?
A day that began with the hopes of an NFL-sanctioned workout for Colin Kaepernick at the Atlanta Falcons’ practice facility in Flowery Branch, Ga. ended with a roughly 45-minute throwing session an Atlanta-area high school live-streamed on .
Kaepernick spoke publicly for the first time since his days as a member of the San Francisco 49er; his brief statement challenged the commissioner of the league and its 31 owners to “stop running from the truth.”
After initially promising that most NFL teams would be in attendance, it is unclear exactly how many made it to the second location.
So, how did we get here and what happens next? Allow us to walk you through the particulars….
A POINT OF CONTENTION
Here in America we let our lawyers do the talking and talk they did on Saturday (for once, sportswriters weren’t the only ones tapping away on deadline).
With a small and preferably anonymous contingent of anti-Kaepernick protestors on hand across the street from a larger contingent of pro-Kaepernick supporters, the stage was set for a closed-door workout (no media access) to be run by former Browns head coach Hue Jackson.
In a statement released from the league’s official PR account, the NFL said that Kaepernick informed them at 2:30 p.m. that he would not be attending the workout. Their perspective, (as transcribed by the league’s official site):
Today's session was designed to give Colin what he has consistently said he wants—an opportunity to show his football readiness and desire to return to the NFL.
Twenty-five (25) clubs were present for the workout, and all 32 clubs, their head coaches, general managers, and other personnel executives would have received video footage of the interview and workout, shot by the Atlanta Falcons video crew. It is important to note the following:
• As stated above, more than three-fourths of NFL clubs were present for today's workout.
• The NFL made considerable effort to work cooperatively with Colin's representatives. We invited his agent to suggest questions for the interview.
Yesterday, when Colin's representatives said he wanted to bring his own receivers to the workout, we agreed to the request.
In addition, Coach Hue Jackson discussed with Colin's agent what drills would be run at the workout so that Colin would know what would be expected of him.
• Last night, when Nike, with Colin's approval, requested to shoot an ad featuring Colin and mentioning all the NFL teams present at the workout, we agreed to the request.
• On Wednesday, we sent Colin's representatives a standard liability waiver 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.
• We heard for the first time last night, around the same time we heard from Nike, that Colin wanted to bring his own video crew. We heard for the first time this afternoon that Colin wanted to open the event to all media.
• We agreed to have Colin's representatives on the field while the workout was being conducted and to allow them to see how it was being recorded. We did so even though we have been clear from the beginning that this is private workout.
As is typical with NFL Combines, one video crew was prepared to shoot and distribute video of the interview and workout.
We confirmed with Colin's representatives that they would receive both the video that would be sent to all 32 clubs as well as the raw footage from the entire event, which is unprecedented.
The location Colin selected is more than an hour away from Flowery Branch.
We are grateful to the Falcons, who made available the club's first-class facility, along with athletic training, equipment, and communications staff to ensure that today's workout would occur under ideal conditions, to coaches Hue Jackson and Joe Philbin, who were prepared to run a workout that would allow Colin to demonstrate his skill level, and to Jeff Foster and the Combine staff for arranging for other players to participate and for managing the logistics of the workout.
Colin's decision has no effect on his status in the League. He remains an unrestricted free agent eligible to sign with any club.
Kaepernick’s team released their own statement detailing their version of events, which also opened the door for on-scene reporters to get the location of the new workout, which was their attempt to ensure transparency in the process. Previously, the Falcons’ video crew was going to be the only group on hand to tape the workout. Team Kaepernick’s statement read…
• Because of recent decisions made by the NFL, the workout for Colin Kaepernick will be changing to an alternate location in Atlanta, which will now start at 4 p.m. All representatives from clubs are invited to attend and will be provided the location. Further, all media will be invited to attend and upon request will be provided the location. From the outset, Mr.
Kaepernick requested a legitimate process and from the outset the NFL league office has not provided one. 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. the prior conduct by the NFL league office, Mr. Kaepernick simply asks for a transpired 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.
Nike, through several reporters, also denied being on hand to shoot a commercial. If you read the NFL’s statement, they mentioned the apparel company (and Kaepernick sponsor), noting that Nike had requested to run an ad mentioning which teams were going to be at the workout.
As Kevin Draper of The New York Times (linked above) smartly notes, the NFL’s statement doesn’t ever say that Kaepernick’s team wanted to turn the workout into a commercial, though that is the way many in the NFL media interpreted it. They wanted to use the names of teams that were there.
SO, ABOUT THAT LIABILITY WAIVER
Our Michael McCann has a great breakdown of the perspective from a legal standpoint and includes a point about the language in the NFL’s statement—it’s a little nebulous and allows for some fairly radical departures from a standard injury waiver, which is why Kaepernick’s team might have been upset. Also, McCann notes that the league sent this to Kaepernick’s team on Wednesday night and received “no pushback”—though that isn’t the same thing as saying they agreed to it. From McCann’s piece:
• “An injury liability waiver is not a straightforward document—it is detailed and complex.
A waiver is a document that can take time to review, especially since (as mentioned above) it may have differed in important ways from standard forms.
It’s thus not really surprising that Kaepernick’s representatives sent back a proposed new version to the NFL. If the two sides gave themselves more time, they might have worked out differences.”
ProFootballTalk’s Mike Florio received a copy of the waiver on Saturday and noted that “there’s enough language in the waiver to give a prudent, careful lawyer legitimate concern that an aggressive litigator would later argue that signing the document defeats all potential employment claims that Kaepernick could have made.” In a nutshell, Kaepernick’s legal team may have been concerned that by having Kaepernick sign the document, he would be pinning himself in court with any future legal action against a league he believes has consistently colluded against him.
WHICH TEAMS CAME TO THE SECOND WORKOUT?
After initially promising that most NFL teams would be in attendance, it is unclear exactly how many made it to the second location. The ones we know of, via Jim Trotter of NFL Network: Chiefs, Jets, Eagles, Washington, 49ers. ESPN’s Adam Schefter added the Titans and Lions to the list.
HOW DID KAEPERNICK ACTUALLY LOOK THROWING THE BALL?
You can see for yourself here, which is part of Kaepernick’s reasoning for moving the workout in the first place. If you’ve made it this far down into the post and are steadfast in your beliefs that Kaepernick is an anti-American malcontent, congratulations.
We’re not trying to change anyone’s mind, but from Kaepernick’s perspective, a closed-door workout without an open, transparent throwing process could give the league an advantage here.
There would, theoretically, be no video evidence to combat an overwhelmingly negative evaluation.
• Our Albert Breer spoke with a handful of evaluators on the scene who, essentially, surmised that Kaepernick was able to show that he is still the player he was before exiting the league.
• NFL Network’s Ian Rapoport spoke with four evaluators on the scene. Consensus: Good velocity, inconsistent accuracy. He can still move well.
• NFL Network’s Daniel Jeremiah watched video of the workout and essentially fell into line with the scouts who spoke with Breer and Rapoport. A name that occasionally gets bandied about during the GM hiring process, Jeremiah is a former NFL scout with the Eagles and Ravens.
It’s important to note that a lot of this didn’t have a chance to be scripted.
Kaepernick ended up bringing his own receivers, partially because he was in the dark about who would be at the league-sanctioned workout.
Kaepernick’s agent, Jeff Nalley, told NFL Network’s Steve Wyche that he wasn’t optimistic that Kaepernick would get a call, basically because he hasn’t gotten many calls over the past three years.
SO, WHAT HAPPENS NOW?
There are a few important takeaways here, but first, a round of applause for our Michael Rosenberg for nailing a difficult situation on the head: Kaepernick is another flashpoint in a completely polarized America.
If you watched the stream hoping Kaepernick would succeed, he looked great. If you watched it hoping to find a quarterback that you’re convinced is not in the NFL exclusively due to his football skills, you found that too.
Our ability to plant ourselves firmly in one reality or another has never been greater. the many political charades playing out at the highest levels of American government, there are enough supplies for either side to set up permanent camps in their respective echo chambers.
My thought? What Kaepernick did took guts, though I’m not sure it pushes him any closer to the NFL. He had a chance to play company man, take the loss on a few issues that propelled his outspokenness against the league and try to succeed in a staged workout run by one of the worst statistical head coaches in NFL history.
Instead, he opted to move the workout and protect himself from what he sees as the machine set out to destroy him.
Throwing at the high school cost him being seen by probably 10-15 more scouts or team reps than he would have at the Falcons’ workout facility.
And, in the eyes of the owners who have rationalized not signing Kaepernick because it would represent some type of distraction in the locker room and for their team, they ly feel as though they have an extended term for that excuse.
It will be fascinating to see how this event is interpreted 10 years from now with the benefit of hindsight. From where I’m sitting, it’s hard to argue that Kaepernick, in his current form, wouldn’t be an upgrade over at least a handful of starters in the NFL and many backups.
On Saturday, he looked physically able to handle the rigors of an NFL season and was accurate enough with a band of pulled-together receivers. But, for many of us, this wasn’t about football.
The fact that it took us 2,000 words to get here, through protest pictures, explanations of potentially dubious waivers and warring legalese, should prove as much.
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