At least we know who to blame for this “bizarre fiasco,” or better put, who else to blame. The decision by the NFL to set up the one-day, one-player audition camp for the man who accused the league of racism and collusion for well nigh unto three years never made a whole lot of sense, and its outcome turned into nothing more than a grievance protest of its own. It turns out that the event was the brainchild of music and culture mogul Jay-Z, who’s now telling people that Kaepernick “disappointed” him by turning “a legitimate workout into a publicity stunt.”
Um … did Jay-Z never meet Colin Kaepernick?
Colin Kaepernick’s unanticipated decision to change Saturday’s planned NFL workout let down one of his biggest supporters: Jay-Z.
According to a source, the rapper-turned-businessman is “disappointed with Colin’s actions and believes he turned a legitimate workout into a publicity stunt.”
Kaepernick requested to shoot a Nike ad as a part of Saturday’s workout, featuring the quarterback and mentioning all the NFL teams present at the workout. The NFL agreed, but Kaepernick informed the league of his decision to change the location of the workout on Saturday at 2:30 p.m., moving the event from the Falcons’ practice facility to Charles R. Drew High School in Riverdale, Ga. …
In a news conference to announce the deal, Jay-Z said, “I think we’ve moved past kneeling. I think it’s time to go on to actionable items,“ sparking widespread backlash. But reports surfaced this week that Jay-Z had been working behind the scenes to help influence the NFL to set up Saturday’s workout.
Count me among those who think there’s plenty of blame on both sides. Yes, it’s true that Kaepernick isn’t the QB he was a few years ago, but he’s still a Super Bowl QB with an arm, and enough experience to read defenses. That puts him well ahead of some who are still getting shots at starting games in the league. It’s not a talent issue — it’s a headache issue, and to a certain extent a politics issue. The latter shouldn’t be the cause of not employing someone of talent, just like a Trump supporter or an employee who voices pro-life or traditional-marriage support shouldn’t be denied on that basis.
Jay-Z apparently made the mistake of thinking that Kaepernick was ready to dial down the nonsense. Showing up in a “Kunta Kinte” t-shirt is one pointed signal that nonsense is now the profession of choice for Kaepernick, but the league’s weird scheduling and conditions for the workout might signal that they’re up to some nonsense, too. While the NFL claimed it wanted Kaepernick to sign a routine waiver for damages related to physical injury as part of this sponsored workout Jay-Z arranged, it turned out to be a little more than that. NBC’s Pro Football Talk took a look at the language of the waiver, and noted that among the “word paella” that’s standard in waivers was a clause that was a big “red flag”:
Most of that word paella has become standard practice when attempting to ensure that a waiver sweeps as broadly as intended, covering all parties who could be sued and all parties who could be doing the suing. Here’s the specific language that would get my attention, if I were the lawyer whose client was being asked to sign it: “any and all claims . . . caused by, arising out of, occurring during, or related directly or indirectly to the Workout, Player’s presence at the Facility, and any medical treatment or services rendered in connection with or necessitated by Player’s participation in the Workout.”
The phrase “directly or indirectly” should raise a bright red flag, because the term “indirectly” easily could be used to bootstrap a waiver intended to protect the NFL and all related parties against a personal injury lawsuit into a silver bullet that would defeat from the get go any claims for collusion or retaliation related to Kaepernick’s ongoing unemployment from the moment his February settlement agreement was signed through and beyond the November 16 workout.
If I were representing Kaepernick, and if the goal were to have a genuine workout aimed at enhancing his chances of being signed by an NFL team, I would have asked immediately for the document to be revised to specifically clarify that any and all potential employment rights would be preserved. If the league had refused, I wouldn’t have signed it, because the language leaves the door sufficiently ajar for a subsequent defense to a collusion/retaliation case that signing the waiver extinguished the claims. Failure to obtain that clarification could be characterized as professional malpractice, especially in light of this portion of paragraph No. 13: “This Release is governed by the laws of New York, without regard to conflict-of-law principles, and is intended to be as broad and inclusive as permitted by the laws of the State of New York.” (Emphasis added.)
This raises another question, too: why would the NFL have left itself open to another potential collusion claim by orchestrating this unusual workout? Perhaps they thought it could indemnify the league against a subsequent claim, but their first settlement should have covered that. By taking this kind of direct action, rather than just having teams scout Kaepernick themselves and invite him for tryouts, the league put themselves back in the firing line.
The real reason the league did this, I suspect, is that they want Kaepernick signed by someone in order to grease the wheels for the upcoming negotiations for the next Collective Bargaining Agreement. The players are still unhappy over Kaepernick’s exclusion, and Roger Goodell probably hoped that a team would have solved that problem by now for him after the settlement. When that didn’t happen, Jay-Z’s plan to conduct a league-wide tryout for Kaepernick must have looked like a good way to signal teams of the league’s desire to get this chapter closed as fast as possible. The problem, of course, is that Kaepernick doesn’t really want it closed — he wants to return on his own terms, not the league’s, while still flogging the league for its racism. Hence the reference to slavery on Kaepernick’s chest for his workout.
The Wall Street Journal’s Jason Gay proclaims a pox on both houses from the “bizarre fiasco”:
This tryout was a bizarre exercise from the start. Kaepernick has been missing from the NFL for close to three years, acrimoniously. He and the league do not get along; a collusion grievance has been settled, but distrust remains rife on both sides. Supposedly, a few teams were interested in him, and wanted the league’s help, but I don’t get why the NFL felt compelled to reintroduce him so loudly, hastily, on a Saturday, in mid-November—an unprecedented showcase—nor do I understand how anyone could think the negotiations of his reintroduction would be simple. …
What was the problem if Kaepernick’s tryout got pushed back a few days, or a week, until both sides had everything pinned down—the terms, the set-up, the waiver, all that, so a certain level of comfort was reached. The waiver appears to be a particular point of contention—the fear being it could have been used to insulate the league from future collusion claims by Kaepernick. The Journal’s football writer, Andrew Beaton, showed the waiver to an experienced former prosecutor and lawyer, and his reaction basically was: Yeah, I wouldn’t have signed that thing, either. …
What seems certain is that this whole situation is now worse. You can blame Kaepernick, or the NFL, or the lawyers lawyering on all sides, but it’s clear that goodwill has left the building, and probably taken with it any chance of a resolution. If the NFL was hoping for a shot of positivity from this—praise for an olive branch extended—that is kaput.
As for Kaepernick, I don’t think anyone can credibly say he’s now closer to the NFL. Some folks think his role in this folly cost him his final opportunity—there was Rex Ryan, a P.T. Barnum himself, on ESPN Monday, lamenting the “circus” Kaepernick would bring—but who the heck knows. The NFL is full of people on their third and fourth chances. If a team has a need, a team will look the other way. Bill Belichick watched Antonio Brown unleashing anarchy on the Oakland Raiders training camp and said to himself: Give me some of that. And then Brown blew up the Patriots. Football’s weird. It got even weirder Saturday. What a mess.
And that CBA negotiation might turn into even more of a mess, unless Goodell can find someone to get Kaepernick back in the league. As Lyndon Johnson famously observed, it’s far better to have someone inside the tent micturating outward than outside the tent micturating inward.
NBC Sports outlined what’s next for Kaepernick yesterday after this fiasco. Not much, probably, to Goodell’s regret.And for the record, ESPN’s Stephen A. Smith isn’t buying the waiver issue, either.
The fact that Colin Kaepernick didn't show up to his original workout location eradicates his points altogether. pic.twitter.com/ROYderTuPw
— Stephen A Smith (@stephenasmith) November 18, 2019
Update: Why was Kaepernick so insistent on having his own film crew? Page Six follows up on a claim from the NFL that Kaepernick wanted to cut a new Nike ad. Verdict — maybe:
Page Six has learned exclusively that while Nike wasn’t filming, it did have a marketing move up its sleeve — in the form of a branded congratulations to be posted to Kaepernick. The marketing material — seen by Page Six — consists of a letter that Kaepernick himself penned back in fourth grade when he dreamed of having a job in the NFL. “A Note from Colin Kaepernick, 4th Grade,” says the copy, followed by a child’s handwriting in pencil that reads: “I’m 5ft 2 inches 91 pounds. Good athelet [sic]. I think in 7 years I will be between 6ft – to 6ft 4 inches 140 pounds. I hope I go to a good college… then go to the pros and play on the Niners or the Packers even if they aren’t good in seven years.” The letter by young Kaepernick is signed, “Sincerely, Colin.” It then has the “Just Do It” tagline, and a list of all the teams that were to be at the NFL’s workout. A Nike rep did not get back to us.
A source huffed of the concept: “Saturday was his big day, and on Friday night [before the workout], you’re thinking about your Nike ad? The whole thing’s just a commercial.” But another source insisted: “It is simply not true that Colin, with Nike’s approval, requested to shoot an ad the night before. There was never discussion of an ad or commercial. There was some contemplation of Nike sending a congratulatory post the day of.”
It’s now unclear if Nike will use the fourth-grade letter in its materials.
Yeah, well, looks like marketing mattered to both sides here. One has to wonder how much longer Kaepernick’s colleagues are going to care about his status after this, though.