November 19, 2019
When Colin Kaepernick first tweeted about the invitation he had just received via his team, from the NFL to participate in a private workout in front of franchise executives 4 days later, to many it sounded like a step in the right direction from a league that had essentially turned its back on him for the past 3 years. It came out of the blue, however, and that alone was enough to invite skepticism as to the motivation behind it. There has been speculation that Jay-Z, who with his Roc Nation agency has embarked on a partnership with the NFL earlier this year with musical and social justice angles, had something to do with the decision, but that has neither been confirmed or denied by Jay-Z, his representatives or the league.
What nobody knew until a few hours later when more details started coming out, courtesy of various NFL insiders, was that the decision had been made by the league office and that besides a select group of reporters who had been alerted a week prior to a news set to break on Tuesday, November 12th, neither Colin Kaepernick nor the NFL teams or even the NFLPA had any inkling of what was to come, although they were all to be front and center on the day of the workout and needed time to work out the logistics of such an event. It was reported that Colin Kaepernick was given 2 hours to accept this offer and the teams were sent a memo after the news became public. Kaepernick agreed but asked for the workout to be held on a Tuesday, as is the case for free agents throughout the year when teams bring them for tryouts, because he knew that no team’s general manager (GM) or coach would be able to attend it, as teams would be preparing for their Sunday or Monday games and scouts would be attending college games. The request was denied, as was their request to hold it the following Saturday to give everybody more time. Why the rush? Why did it have to be on a Saturday and why this Saturday? And if the league had enough time to contact a group of reporters a week prior to making the announcement and secure a time, date and venue, it certainly had time to contact the very people whose presence was imperative for the event to even occur?
For teams, who were legitimately interested in attending, if for no other reason than gathering information about Kaepernick, there wasn’t much time to devise a plan and decide who to send. That said, teams who had a legitimate interest in Kaepernick or wanted to gather information had three years to have him in their facilities and try him out but did not. Why not? It was reported that certain teams had recently contacted the league to inquire about Kapernick’s status and were told that there were no restrictions on working him out and/or signing him as a free agent. Despite the confirmation, no team contacted him and according to the statement released on October 10th, 2019, by his agent Jeff Nalley and his PR Director, Jasmine Windham, both with Select Sports Group Holdings, they “reached out to all 32 teams about Colin’s employment, with little to no response from teams about an opportunity for Colin. In 25 years (I) have never seen anything like it.”
Teams bring in free agents almost every week, on Tuesdays, based on their needs at certain positions or to garner information on players, and it is not a process that includes contacting the league first to ask for permission or get confirmation. So why do it for Kaepernick? The only two scenarios in which his status could be uncertain would be if he had been suspended (and potentially released) and at some point placed on the Commissioner’s Exempt (CE) list, like Kamrin Moore, for instance, or if he was serving an indefinite suspension, like Myles Garrett (he is appealing the punishment and will be present at his hearing on Wednesday). Moore’s case has been resolved in the court system and he has now been reinstated. Garrett was suspended following an on-field incident at the end of the Monday Night Game between Garrett’s Cleveland Browns and the Pittsburgh Steelers, in which he removed the helmet from the head of Steelers quarterback Mason Rudolph and then struck him in the head with it. He will have to be reinstated before being allowed to play again. Neither of these scenarios is applicable to Kaepernick, though.
Colin Kaepernick’s employment situation is a reflection of the United States at this juncture of history in which everything seems to always feel fall in the “for” or “against” category. For Colin, his peaceful protest escalated to a grievance procedure and arbitration in which private documents were obtained through discovery, depositions were taken, furthering the divide between the two parties, not to mention the President of the United States, who counts several team owners among his friends, supporters and campaign contributors, inserting himself into the equation and adding yet another layer to this already complex and unheard of face-off between a player and the league he is hoping to resume employment with.
How would this almost-impromptu private workout change things and generate an interest that has not been there for 3 years, unless it is perhaps used as a cover for teams who might have been interested in his services but did not want to be singled out as the team who brought him in, at the risk of alienating its fan base and/or sponsors? Either way, it doesn’t pass the smell test, even to an untrained nose.
In addition, former Cleveland Browns’ Head Coach (HC), Hue Jackson who was asked by the league to direct the workout, with former Miami Dolphins HC, Joe Philbin, received and accepted the assignment on Thursday, leaving them only two days to work out the logistics of getting there and define roles and tasks for all those involved in the various parts of the process, which included an interview and on-the-field drills. Did they want to set several people up for failure at once or were Jackson and Philbin merely considered collateral damage?
As non-sensical as things had been to that point, there was still more to come.
According to ESPN reporter, Howard Bryant, Kaepernick’s team was told that the NFL would provide them in advance with a list of all NFL team executives who would be attending the workout, a claim that the league has since denied, and were never provided the list. On Thursday, the NFL was unclear about who the receivers would be during the workout, which prompted Kaepernick to call on his own group of receivers (Bruce Ellignton, Brice Butler, Jordan Veasy, Ari Werts) and fly them to Atlanta at his own expense. Kaepernick’s friend, ally, former teammate and co-plaintiff in the collusion lawsuit against the NFL, Carolina Panthers safety Eric Reid, was also part of the group.
The NFL informed Kaepernick that no media would be allowed to attend the workout, that no independent recording of the interview and workout would be permitted and that a recording of both, made by the NFL, would be sent out to all 32 teams afterward.
This raised even more suspicions in Kaepernick’s camp and beyond regarding the lack of transparency and the fact that these conditions gave the NFL virtually total control of the narrative. Regardless of what really happened behind those literal closed doors, how simple, would it be for the NFL to edit the video emphasizing the mistakes, missed throws, miscues of Kaepernick, disseminating it to the teams, the media and the public with a well-crafted statement ready for use by all the pundits? This is a legitimate and necessary question to ask, especially if you are Colin Kaepernick and the organization who is now presenting you this loaded opportunity, with little to no wiggle room and no control, has kept you out for three years and not had any communication with you since February 2019, when a settlement ended the collusion grievance you filed against them.
Since the grievance was settled in private arbitration before it went to court little was made public but there was sufficient evidence for the neutral arbitrator, Stephen Burbank, to deny the NFL’s motion for summary judgment, in August 2018. Settling the lawsuit was not proof of wrongdoing, but based on the successful track record of the league in court and their history of scorched-earth litigation, it lends credence to the idea that documents produced in discovery and the various depositions taken were something the NFL did not want to see come out under any circumstances.
Whether or not there was a paper trail proving collusion remains unknown but even if no smoking gun exists on paper or otherwise it doesn’t necessarily mean that such collusion did not occur. Even beyond collusion, the case for Colin Kaepernick being blackballed has been made over and over by the absence of genuine arguments against trying him out and the signing of quarterbacks with less talent, experience and/or accomplishments season after season, both as starters and back-ups for the 32 teams in the league. As the saying goes, “what is understood need not be explained.”
|As a reminder, between 1933 and 1946, there were no Black players in the NFL despite the insistence of owners that there was no “color ban” in place.|
On Saturday, the workout was scheduled to be held at the Atlanta Falcons workout facility at Flowery Branch, GA, at 3 PM and twenty-five (25) NFL scouts and player personnel people had been confirmed. Both supporters and detractors of Kaepernick assembled in front of the facility, hours before the event, as well as reporters, blocked from covering the actual workout but intent on covering the event from outside, due to the rules set by the league. The Kappa Alpha Psi fraternity (Lawrence-Duluth alumni chapter) was well represented and made their presence known in support of their fraternity brother.
At 2:30 PM a statement was released by Kaepernick’s team informing the public and the media of a change of plans due to “recent decisions made by the NFL”, citing the “unusual liability waiver that addresses employment-related issues and rejected the standard liability waiver from physical injury proposed by Mr. Kaepernick’s representatives” as well as the issue of transparency, saying that they had “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 workout was moved to 4 PM to Charles R. Drew High School in Riverdale, GA, an hour’s drive south of the original location. Word trickled down to the crowd outside and everybody had to first confirm the information and then make the decision of whether to attend the now-Kaepernick-lead workout.
The executives inside the facility, including the 2 coaches charged with running the workout, were among the last to receive the information but were all invited, along with the media, to attend the workout at the new location. It was quickly reported that Coach Hue Jackson was making his way toward the airport and would not be attending the workout. In the end, out of the 25 teams, only seven were in attendance to watch Kaepernick throw to his group of receivers: Kansas City Chiefs, Washington, Philadelphia Eagles, New York Jets, San Francisco 49ers, Tennessee Titans and Detroit Lions. Media members were screened and let in, free to watch and record the entire workout, while a crowd, largely composed of the same people who were outside of the Falcons’ workout facility, watched from behind a chain-link fence. All bearing witness to the workout that almost never was and that might never even matter.
Reports and statements were the way all information, changes, and developments were communicated to people from the start of the day, and as Kaepernick was stretching on the field at Charles R. Drew High School, an NFL statement was issued in response to Kaepernick’s changes.
The part of the statement referencing Nike was refuted by a Nike spokesperson to Kevin Draper of the New York Times, among other media.
A Nike spokesman said Nike did not have a camera crew on the ground in Atlanta and had no plans to use footage from Kaepernick’s workout.
The spokesman wouldn’t say when, or whether, the ad would come out, but it seems Nike only wanted permission to use N.F.L. team names.
— Kevin Draper (@kevinmdraper) November 17, 2019
The misstatement is still nonetheless used in the media as a “gotcha” type of example to support the spin that Kaepernick is not about playing football but rather about using his workout to expand his brand with the help of Nike, a company that has problems of its own, but that has stood by him through it all and made him last year, one of the faces of its campaign marking the 25th anniversary of the “Just Do It” campaign. The commercial, which debuted on the first Thursday night Football game of the 2018-2019 season, won an Emmy back in September.
Kaepernick’s on-field performance was described by those who witnessed it in person and those who watched it via online live-streams, as solid.
This Colin Kaepernick deep ball during his workout was beautiful. pic.twitter.com/HOZnclngZZ
— Erick Fernandez (@ErickFernandez) November 16, 2019
A scouting report from four high-ranking evaluators who watched it in its entirety was published on nfl.com. One evaluator said that Kaepernick “was in good shape and he has fastball. The velocity was real good. Accuracy and touch were inconsistent. On deep balls, he was ordinary. He can still run well. Essentially average overall.” Another one said: “Good showing. Thought he looked like he did when he was last on the field.” The workout lasted about an hour altogether and Kaepernick threw 60 times over the course of 40 minutes, short, mid and deep-range throws, pretty standard for a quarterback workout at a pro day or a free agent tryout. Although some of the deeper throws elicited cheers from the crowd, the workout was held relatively quietly. He showed that he could still play at a high level but we already knew that, didn’t we?
Before leaving the field, he had a conversation with some of the scouts and left them with parting words, reported by Jourdan Rodrigue from the Athletic, that have since been retweeted a million times: “When you go back, tell your owners to stop being scared.”
Kaepernick thanks scouts from Washington, New York Jets and Kansas City and says: “When you go back, tell your owners to stop being scared.” pic.twitter.com/UMLSrIcn09
— Jourdan Rodrigue (@JourdanRodrigue) November 16, 2019
After the workout, Kapernick spent some time interacting with the crowd assembled behind the fence, signing autographs, shaking hands, taking pictures with as many of them as possible, before addressing the media. The last time, we had witnessed a similar scene, was back when he was still in the league and addressing the media in the locker room, explaining why he was kneeling, whose rights he was fighting for and what really mattered to him. That was three years ago. One of the criticisms often waged against him is that he let others speak on his behalf, although he always contended that his work did the talking for him. Once again, he was in a position where he had to explain himself and that he did. Here is his full statement:
Let me start by saying, I appreciate y’all coming out. That means a lot to me. Our biggest thing with everything today is making sure we had transparency with what went on. We weren’t getting that elsewhere, so we came out here.
It’s important that y’all are here. Y’all been attacked for the last three years, you continue to be attacked. We appreciate what y’all do, we appreciate you being here today, we appreciate the work you do for the people in telling the truth. That’s what we want in everything.
I’ve been ready for three years. I’ve been denied for three years. We all know why I came out here today and showed it in front of everybody. We have nothing to hide.
So we’re waiting for the 32 owners, the 32 teams, Roger Goodell, all of them to stop running, stop running from the truth, stop running from the people. Around here, we’re ready to play, we’re ready to go anywhere, my agent Jeff Nalley is ready to talk to any team. I’ll interview with any team at any time.
I’ve been ready. I’m staying ready. And I’ll continue to be ready. To all the people that came out today to support, I appreciate y’all, I love y’all. To the people that aren’t here, I’m thinking of you, I appreciate you supporting from where you are. We’ll continue to give you updates as we hear. We’ll be waiting to hear from Roger Goodell, the NFL, 32 teams. We’ll let you know if we hear from them.
The ball’s in their court. We’re ready to go.
The change of venue has been described by many as a premeditated act and proof that Kapernick never intended to work out at Flowery Branch or to go along with the NFL’s plan. Things happened too quickly and too conveniently for these people; something must have been up.
Kaepernick has proven that he is not one to go along just to get along, especially when the stakes are that high. So, maybe, he used what he saw as the league’s public relations stunt against the league itself. That still would not mean that he does not want to play football, as many have been claiming since Saturday. If he didn’t want to play football there would be no reason for him to train five times a week as intensively as he has for the past three years. He could stay in shape without setting foot on a field or throwing a football. He doesn’t need to pretend to want to play if he really doesn’t want to. His activism and his work in the community have afforded him a status that is more than enough for anybody.
Kaepernick held his Know Your Rights camp in Atlanta this past October, and the connections he made there and support he garnered undoubtedly helped facilitate this move. Howard Bryant, who was in Atlanta on Saturday reported that Kaepernick had been in town since Thursday fully preparing to work out at Flowery Branch but concerned with various aspects of the NFL’s plan and as time went on and things seemed hopeless in regard to essential details, he and his team reached out to their contacts in Atlanta starting late on Friday to explore options should the need for a plan B arise. Their local partners were able to secure not only the grounds at Charles R. Drew High School but also provide security at the new location. When things started to break down with the NFL’s plan, he could have simply decided not to work out at all, if football was not a priority for him, and instead spend the entire time interacting with his supporters who had been waiting several hours to see him.
One of the biggest issues Kaepernick had with the NFL and one of the reasons for the change of plan, as mentioned earlier, is the waiver the NFL wanted him to sign before the workout, and coincidentally or not, it is the piece of the puzzle that is the least mentioned by those who blame him for the way things went down.
The lawyers who have weighed in on the issue, however, could not have been clearer in their position regarding the document and the conclusion that they would have never let a client sign it, especially not one with Kaepernick’s history with the league.
Cliffs Notes version:
“Player… agrees to indemnify and hold harmless… the National Football League… from ANY and ALL claims… related directly or INDIRECTLY to the Workout…” https://t.co/CHaP2Yx5T0
— Daniel Wallach (@WALLACHLEGAL) November 18, 2019
It arguably would amount to malpractice to let your client sign this, given the history between the two sides. https://t.co/3owzsvoHYl
— ProFootballTalk (@ProFootballTalk) November 18, 2019
It would be a terrible exam question. The answer is “are you kidding??” After seein @SheillaDingus reference them, I read both @WALLACHLEGAL @McCannSportsLaw takes. Dan is right, and so is @ProFootballTalk it would indeed be malpractice for Kap to sign the NFL waiver.
— bmaz (@bmaz) November 18, 2019
Add the former President of the Georgia State Bar Association (and a member of the ABA’s House of Delegates) – with over 100 jury trials – to the growing list. https://t.co/a52lPMlObZ
— Daniel Wallach (@WALLACHLEGAL) November 18, 2019
The NFL insists that the waiver it demanded Colin Kaepernick sign was standard. Standard, however, doesn’t necessarily work in an unusually litigious situation. Meanwhile, SI has obtained Kaepernick’s waiver and it couldn’t be more different. Key details on the battle of waivers: https://t.co/kG21WcRdAl
— Michael McCann (@McCannSportsLaw) November 18, 2019
As explained in great detail by Michael McCann in an article for Sports Illustrated, the waiver presented by the league was broader in scope than typical waivers that players sign when they work out for teams at team facilities and betrayed the league’s concern with shielding itself from future litigation, especially litigation related to claims of collusion. A concern that is justified given the history between the two parties. Given this history, and common sense, should anybody really be surprised that Colin Kaepernick and his lawyers did not agree to sign his rights away for this workout?
The waiver Kaepernick and his team responded with focused on liability arising from injuries (or death) occurring at the facility and/or during the workout and acknowledged the risks and hazards related to trying out for a professional team, which is more in alignment with standard waivers signed by free agents who try out for teams.
Having more time to organize and better communication could have helped reach a compromise but that still might not have been enough. It is important to tell the whole story and call out half-truths and outright lies, especially when they are used by people with loud megaphones and large platforms on social media and/or on TV.
Since Saturday, people in the public and in the media, even among those who previously wanted to see Kaepernick get another shot, have been more upset at Kaepernick for showing up as himself (including the Kunta Kinte t-shirt, the afro and the unfiltered comments) and making demands, than at the NFL for forcing this surprise workout not just on Kaepernick but on NFL teams, too, and for doing everything it could to control the process, the conditions, the outcome and the narrative from beginning to end. Kaepernick should have, according to his detractors, accepted every single condition, replaced the Kunta Kinte on his shirt with a Toby, showed out on the field and expressed gratitude at every turn. He did not and instead stayed true to himself and to the principles he had held as his own since this fight has started. He is taking heat for it from all sides. Kaepernick is the villain in a lot more people’s minds today that he was just a week ago, and although nobody could have anticipated all the twists and turns that occurred on Saturday, it is not unrealistic to conclude that the NFL ultimately got the reactions to support their banning of a man whose only crime was becoming a voice for the voiceless.
The fact that Kaepernick’s performance on the field during the workout (the raw public and media-shot footage we only have access to because Kaepernick stood his ground and changed the venue, have been used everywhere from CNN to NBC to the NFL Network, by the way) is barely a part of the conversation happening across various platforms and on every single sports talk show, proves yet again that his play was never the issue and the reason he is out of the league. He can still play and more than ever today we know it might never be enough for him to get back in a league he worked so hard to be drafted in and in which he excelled for years until he dared to break ranks for a cause bigger than himself. The ultimate crime, it seems.
Howard Bryant reported late Monday that Jeff Nalley sent the full workout video (58 minutes) to all 32 teams on Sunday night, along with a letter stating that Colin Kaepernick was available to speak with each team by telephone and/or in person. They are also considering organizing another workout during the next owners’ meeting in Palm Beach in April 2020, where all 32 owners, GMS and HCs will be.
Kapernick placed the issue squarely where it belongs. The ball is the teams’ and the NFL’s hand, no matter what he does or doesn’t do, says or doesn’t say. The little trust that existed between the parties up until last week might have taken its most brutal and final hit on Saturday, and for Kaepernick’s prospect of returning to the NFL.
Colin Kaepernick’s story, however, is still being written.
Editor’s note: For the most part I have a relatively quiet and tame Twitter account only picking up a random comment here and there. Over the course of the past several days, I’ve found it very disturbing in how almost every tweet I’ve tweeted about Kaepernick has drawn trolls that I don’t follow (obviously) and who don’t follow me out of the woodwork as if they’re searching and ready to pounce on any mention of Kaepernick’s name, only reiterating the reactions Habiba referred to. ~Sheilla
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