The NFLPA’s statement regarding the settlement of the Colin Kaepernick collusion grievance expressed in one breath a hope that Kaepernick will be back in the NFL and acknowledged in the next breath that the union representing all players has no information about the terms of his settlement. It’s quite possible that the terms of the settlement make the first point moot.
Lawsuits and arbitrations arising from employment issues routinely include a declaration that the former employee will not apply for employment with the company and will not accept an offer of employment with the company in the future. This term preemptively blocks an effort by a disgruntled former employee to take a settlement and then show up seeking a job at some point down the road, arguing that a failure to employ the person constitutes retaliation for the prior legal claim and settlement of it.
If the NFL secured such a provision in the Kaepernick settlement agreement would have been prudent, and it undoubtedly would have been expensive. With Kaepernick believing that but for collusion he would have been employed in 2017, 2018, and through the natural conclusion of his career, the 31-year-old quarterback may have wanted up to 10 totals years of compensation to go away.
Arguably, a provision like that would constitute collusion on its face. But if Kaepernick chooses to waive his right to seek or accept employment with any of the NFL’s 32 franchises as part of the settlement, that’s his business. And if the NFL’s lawyers were to suggest that term within the confines of settlement discussions, Kaepernick’s lawyers wouldn’t have been able to run into court and shout “COLLUSION!,” because communications occurring within the confines of settlement talks are inadmissible and necessarily confidential.
Obviously, the NFL didn’t secure a term like this with Eric Reid, given that he recently signed a new contract with the Panthers. Thus, the league will have to worry about something happening in the future that could cause Reid to claim that a decision made about him carries with it the taint of collusive retaliation. As to Kaepernick, however, the NFL had every reason to permanently end the relationship — and if the price was right for it Kaepernick had no reason to decline.
Before the settlement, the league and its teams seemed to be determined to never employ Kaepernick again. Absent a promise to not seek or accept employment going forward, any future grievance filed by Kaepernick would have come down to dollars and cents. If Kaepernick got enough dollars and cents now, there’s no reason to cling to a possible opportunity to get more dollars and cents later.