Inside the waiver proposed by the NFL to Colin Kaepernick

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Sunday’s homework assignment is coming along nicely, so far.

PFT has obtained the waiver proposed by the NFL to Colin Kaepernick in advance of Saturday’s workout. The three-page, 13-paragraph documents contains several specific provisions that could be relevant to the question of whether the NFL was trying to parlay the waiver into a release of any claims for collusion/retaliation that Kaepernick could make as a result of his ongoing unemployment by the league since settling his first collusion case in February.

Here’s the language of paragraph No. 2 from the waiver: “Player acknowledges that he has been made no promise of employment, and understands that his participation in the Workout does not constitute employment by any of the Released Parties (as defined herein), but desires to participate in the Workout voluntarily in order to be considered for possible future employment. Player further acknowledges that his participation in the Workout does not guarantee that Player will be offered employment by any of the Released Parties at any time.”

Paragraph No. 2 contains no language that would operate as a waiver of existing claims for collusion or retaliation. But its presence, despite being intended (we’re told) to preempt potential workers’ compensation claims, pulls the employment issue into the waiver, which becomes relevant to the portion of the waiver that specifically, and broadly, releases Kaepernick’s potential legal claims.

That language resides in paragraph No. 7: “In consideration for the opportunity to participate in the Workout, Player, for himself, his personal representatives, executors, administrators, heirs, successors and assigns, hereby releases, discharges, and agrees to indemnify and hold harmless National Invitational Camp, Inc., National Football Scouting, Inc., the owner(s), operator(s) and manager(s) of the Facility, any and all individuals participating in or present at the Workout, including, without limitation, Joe Philbin, the National Football League (‘NFL’) and each of its 32 NFL Member Clubs, and each of the foregoing parties’ respective direct and indirect affiliates, partners, subsidiaries, agents, representatives, employees, shareholders, officers, directors, attorneys, insurers, successors and assigns (collectively, the ‘Released Parties’), from and against any and all claims, demands, actions, causes of action, suits, grievances, costs, losses, expenses, damages, injuries, illnesses, and losses (including death) 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.”

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.)

In their statement from Saturday afternoon, Kaepernick’s representatives said that “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.” Based on the language of the waiver, that’s an overstatement of its specific contents.

That said, 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. Haggling over specific terms and words and phrases in waivers happens all the time; the reasonable reaction to the league’s waiver should have been for the two sides to engage in a prompt and thorough negotiation about the scope and content of the waiver, in order to ensure that he would be waiving only claims for personal injuries arising from the workout, and nothing more. With one extra sentence or paragraph, it could have been made perfectly clear that nothing in the waiver would undermine Kaepernick’s ability to claim that his employment rights have continued to be violated in the aftermath of the settlement agreement signed earlier this year.

A prompt and thorough negotation aimed at clarifying questionable language in the league’s waiver apparently never happened. Which brings back into focus what seems to be the sole overriding truth as it relates to the Kaepernick workout: Neither side viewed this as a legitimate effort to get him back in the NFL, but instead as a vehicle for advancing their own P.R. and/or legal agendas.

69 responses to “Inside the waiver proposed by the NFL to Colin Kaepernick

  1. So let me see if I have this straight…Some guy opts out of his guaranteed contract, and then that guy can’t seem to find anyone who wants to sign him, and now he’s mad about being out of work. Do I have that right? What am I missing here? Is everyone on the planet guaranteed to get a job? When they don’t get a job is that because it’s everyone else’s fault?

  2. Was this the ‘standard workout agreement’ given to all players or not? What is the answer? The league said it was, his camp said it wasn’t. Who is lying? Simple question, what is the answer? Whether or not he should have signed it is a different question.

  3. Good thing that PFT has an attorney at it’s disposal! My head is spinning. But I guess the take away is that the NFL set this up to essentially set Kaepernick up(?!)

  4. Nothing wrong in protecting your business small or large. Especially since the person who was auditioning got paid a settlement from the people he was looking for work for.

  5. Is this the standard waiver form (my guess is yes) that all potential players are presented with, or is there language unique to Kaepernick? It is looking more and more that this guy has no desire to play in the NFL.

  6. Where’s MY private workout? –

    Geno Smith
    Trevone Boykin
    Connor Cook
    Charlie Whitehurst
    Landry Jones
    Matt Moore
    Cody Kessler
    Brian Hoyer
    Tyrod Taylor
    Marcus MariotaTrevor SiemianSam Bradford
    Blake Bortles
    (All NFL quarterbacks with a similar qbr in 2016)

    Because that’s what it’s about, right? It’s about giving qbs who were good in 2016 a chance to show they’ve still got it?

  7. Kap had 16 touchdowns and 4 interceptions in 11 games on Chip Kelly’s dumpster fire team. The team’s record is more a reflection of a defense ranked 32nd in the league. So let’s stop the spin he was a bad quarterback at the end. You don’t just sign anything that’s why you have lawyers. The NFL says it’s the standard waiver given to every prospect well let’s put them side by side.

    If Kap didn’t want to play he would have went home but he did the workout for a half dozen scouts. Anyone who suggests he’s not being blackballed is being disingenuous. Stop looking at this and comparing it to your employment situation. Obviously this is unique as is the entire NFL.

  8. This is a standard waiver/release given to all free agents when they work out for a team. It’s standard for most pro sports as well. This is not some grand conspiracy by the NFL. Get over it.

  9. Doesn’t matter at this point. He got his workout, and the results were as expected: he’s average.

    Average players aren’t worth it when there is a media circus around him. Ask Tebow, or Ray Rice.

  10. So basically it was saying this workout doesn’t guarantee you a job. What’s wrong with that? The fact this has to be written out and signed shows we have to many lawyers in this country.

  11. Surprising that in this day and age people still take the side of billionaires over millionaires. It is not as simple as he took a buyout and no team wants to sign him. Look around the NFL the past 3 years, look how bad some of the QB play has been. Do you honestly think Kaepernick is not better than Mason Rudolph, Trevor Siemian, and who ever the hell plays QB for the Denver Broncos? Take his afro, his beliefs, and his politics out of it, close your eyes and think about it for 20 seconds. Now do you still Kap has been given a fair shot of playing?

  12. Based on the language of the waiver, that’s an overstatement of its specific contents. Lawyer talk for kaep and his handlers lied about said waiver!

  13. I read this somewhere else “Kap tells NFL, “Stop running” Who changed the location at the last second? Oh yea, that`s right Kap did!

  14. KoolAidFree says:
    November 17, 2019 at 9:41 am
    So let me see if I have this straight…Some guy opts out of his guaranteed contract, and then that guy can’t seem to find anyone who wants to sign him, and now he’s mad about being out of work. Do I have that right? What am I missing here? Is everyone on the planet guaranteed to get a job? When they don’t get a job is that because it’s everyone else’s fault?

    ——————————————–

    Kaepernick did opt out of his contract but it was after he was told they weren’t going to keep him. His contract was guaranteed for injury only. Shanahan didn’t want him as the QB for his system. He would have been cut if he didnt opt out.

    That’s the part you’re missing.

    Why do people keep saying the same stuff over and over? I’m not team Kaepernick. I believe the distraction he brings doesnt match his talent at this point. There’s plenty of logical reasons for him not to have a job than to keep using the he opted out his contract. A simple search would clear that up.

    Kaepernick also did get benched by Bortles when he was recovering from injury but Bortles then got benched by Kaepernick. Let’s put those two to bed. People keep throwing then out there without any background. People love to complain when media outlets rush to tell a story but leave out or get the facts wrong but are some how ok with doing the same thing themselves.

    Kaepernick can’t read a defense. Kaepernick is more athletic and probably talented than some QBs playing right now. Kaepernick has a circus full of distractions coming with him, the few QBs that he is better than don’t. If he was a top tier talent he would have a job but he’s not. His asking price originally was too high. I don’t know what it is now. Noone does it’s all just speculation because he hasn’t got to that point in awhile now.

    Either way there’s plenty of reasons to pick from without having to use random headline excuses that you come across.

  15. Heck the Patriots left so many players go this year the NFL could start a new team, where is their tryout going to be held.

  16. This is absolutely insane. Kapernick is not interested in anything but publicity. If he truly thought he was good enough then he would go to ANY workout ANYWHERE and sign ANYTHING. He’s a martyr who is squeezing his last few minutes in the spotlight into a circus.
    After all of this nonsense and public shots at the NFL why would ANY team give him a chance? He’s average at best. No clubs want that headache.

  17. His team received this Wednesday morning why late so long(Saturday morning) to submit your own contract? Also it wasn’t like they just found a place to have the workout. This was all planned in advance.

  18. Sounds to me like it was the standard release all free agents have to sign to participate in a workout for an NFL team. Kap was a special case that some of the language ie. “directly or indirectly” impacted due to the fact that Kap had previously sued the NFL.

    I can state with absolute certainly that I would NEVER rehire a prior employee that sued me for millions. NO WAY. The second he filed a lawsuit against the NFL should have been the moment his NFL career was over forever. To refuse to rehire him is not collusion, it’s common sense.

  19. I am not a Kaep fan but its looking more like the league was trying to correct a serious omission from the February settlement. The league’s attorney did a poor job which left them open and liable for a second collusion lawsuit.

    It sounds like the NFL presented Kaep with an unusual waiver document at the last moment; a ‘take it or leave it’ type of thing. Kaep’s people correctly said ‘leave it’. This bad for the league, but they did it to themselves.

    This is significant because the settlement was worth between $1M – $10M to Kaep and NFL starting QBs are now getting well north of $20M per season. He would be stupid not to sue the NFL again for their continuing collusion. He’s probably looking for $50M – $60M (3 years @ $20M per year).

    I don’t approve of anything Kaep did to get us here, but the league has bungled this charade.

  20. I see nothing in this waiver that would prevent Kap from launching future lawsuits in regards to his ongoing unemployment. It looks pretty boilerplate and in my opinion, completely jives with what the NFL has said. It’s a liability waiver. Shame on Kap’s camp for trying to make it out to be anything else. This is just more of the same though. If Kap did get a job and performed poorly, it’s all over. He won’t take that chance at this point. Too much risk. That’s also why he sabotaged his deal with the Ravens I’d guess.

  21. Kaep wants a waiver that protects himself and leaves the NFL wide open for litigation?
    Good luck on that dream.

  22. Waiver aside, Kaepernick agreed to the location and structure of the workout, then at literally the last minute he changed EVERYTHING!

    He was never serious about this, this was never supposed to be a legitimate shot at getting back in the NFL.

    It was purely a publicity stunt for BOTH sides

  23. If you actually remove all the rhetoric and opinion and simply follow CKs actions, it’s pretty transparent what hes trying to do. Every action over the past few years has kept him from actually having to sign and go out on the field and prove that he still has it. Hes painfully aware that if he actually goes back out on the field and plays poorly, hes lost much of his personal brand and marketability. He scuttled an opportunity with Baltimore, he found a way not to sign and Denver, he found a way to push Seattle away. He requested 20 million dollars from the AAF. And now when hes on the verge of showing what he can do in front of 25 NFL scouts, And he changes the venue at the last minute to a high school over an hour away. Follow his actions. It’s the clearest view to decipher his actual strategy here.

    Hes got too much to lose by going back out on to that field. And all of his actions are working to keep him off it. And preserve his brand.

  24. It’s pretty much all a moot point now.The way Kapernick talked after the workout killed any chances he had at resigning with a team.

    It was like he didn’t really want a job and said those things on purpose so he wouldn’t get a job.

  25. The NFL wants to make sure they don’t get hit with another discrimination lawsuit if Kaepernick doesn’t get a job from this workout. After hearing Kaepernick’s post-workout interview, the NFL was right. Kaepernick is looking to make an example out of the NFL.

  26. Trying to claim that signing such a waiver constitutes forfeiting one’s future right to a collusion suit/employment rights is pretty thin gruel. The better question is, “why would you consider taking a job with an employer you have sued and may well sue again?”

  27. I can state with absolute certainly that I would NEVER rehire a prior employee that sued me for millions. NO WAY. The second he filed a lawsuit against the NFL should have been the moment his NFL career was over forever. To refuse to rehire him is not collusion, it’s common sense.
    ================
    This^, exactly

  28. Good column, Florio. I should have earned CLE reading it.

    I’m gonna borrow that waiver language and consider amending some of the boilerplate I have seen to include this list. Good stuff.

  29. I guess I’m interested in finding out What’s the upshot on his workout? Any team follow up with an interview or request additional workout/visit at a teams facility.

  30. Yes he opted out of his contract before getting cut. I get that. What nobody is talking about is the fact his team, the team “he” took to the Super Bowl , didn’t think he was good enough to start for them. That says it all for me. Everything else is just noise.

  31. My take, they are saying, look ‘we know you can file a collusion lawsuit against us’. You haven’t done that yet.
    By participating in this ‘opportunity’ to showcase your talents to all 32 teams whether present or not, you agree give up any future suit since we allowed you to show your stuff.

    Ya don’t know I would have signed that either.
    Not to mention some NFL lawyer came up with this idea to get the NFL off the hook. Not a Kap fan but his lawyers gave him good advice and he took it.

  32. It is obvious the NFL had ulterior motives when setting-up the workout. Colin Kaepernick will one day prove collusion against the NFL. It is absurd that he has been black-balled from the league for three years. At worst, Kaepernick would be a top QB2 in the NFL. At best, he would be solid QB1 in a system that plays to his strengths.

  33. KoolAidFree says:
    November 17, 2019 at 9:41 am

    So let me see if I have this straight…Some guy opts out of his guaranteed contract, and then that guy can’t seem to find anyone who wants to sign him, and now he’s mad about being out of work. Do I have that right? What am I missing here? Is everyone on the planet guaranteed to get a job? When they don’t get a job is that because it’s everyone else’s fault?

    _______________________

    What your missing, apparently, is that a bunch of has beens and never weres have gotten jobs the past 3 years with less experience and skill than Kaepernick has shown on the field. Also, you’re missing the fact that the NFL already paid the man for a claim you pretend not to think exists. You’re missing quite a bit, in fact.

    I’m an attorney, and there’s no way I would have let a client with a potentially viable claim sign that waiver.

    Finally, I really enjoyed your unintentionally ironic log in name.

  34. boaboy65 says:
    November 17, 2019 at 11:15 am
    Yes he opted out of his contract before getting cut. I get that. What nobody is talking about is the fact his team, the team “he” took to the Super Bowl , didn’t think he was good enough to start for them. That says it all for me. Everything else is just noise.
    =============
    You do know that he started every game for the 49ers in the 2 years after that Super Bowl (2013, 2014)? And the first 8 games in 2015? And 11 games in 2016, AFTER the kneeling incident? So after the Super Bowl year, he started 51 games for the 49ers.

    Trent Dilfer “led” the Ravens to the SB in 2000. He never started another game for the Ravens. He was released after the SB season. Over the next 7 years, he started 30 games, for 4 different teams. Dilfer never complained.

  35. So here’s a Super Bowl quarterback that hasn’t been called even for a back-up role while the likes of Josh McCown get pulled out of coaching a high school football team…and no one thinks this is even the tiniest bit suspicious?

  36. He doesn’t want to play. He’s probably broke and is laying the groundwork for yet another lawsuit. That’s how he’s going to live the rest of his life–by constantly suing the NFL. I wish someone would sign him in the preseason and let him play so everyone can see how terrible he is.

  37. Kap was promised a workout by the NFL at an agreed upon location, but at last minute decided not to show. Blatantly obvious he really doesn’t want to play football but expects continuous publicity as a victim and self declared martyr. Time to say Goodbye.

  38. Kaepernick didn’t want a workout. He wanted to publicly embarass the NFL one last time. The problem is everyone saw through his antics and what sympathy there was for his situation is now gone.

  39. I watched every 49ers game Kaep’s final season. He was terrible. His low INTs are due to the fact he never threw the ball downfield. Mostly he held the ball and got sacked.

  40. Kap planned on ditching the NFL workout and going to the high school where he worked out.
    everything he did was planned and calculated.
    count me amongst the millions who are really growing tired of people propping this guy up in the media.
    Anyone who thinks theres not 1 selfish billionaire that would have signed him if they thought he was the answer isnt using real logical thought processes

  41. Enough already. The NFL bent over backwards to give him one more shot at a path back. He flaked, to the surprise of no one. No NFL team is interested in wasting any more time on him, and neither are we. Let’s move on.

  42. Mr. Florio,
    I greatly appreciate you sharing your legal perspective on actual and specific NFL related contract language. It is valuable for fans to see just how rigorous the business really is. And a note of caution to you — YOU merely express your personal opinion for entertainment purposes only, and it is not legal advice or a legal opinion which may be relied upon.

    Re: para. 7, The salient issue is that consequential damages are only available in tort or fraud claims, which are fundamental legal rights that cannot be implicitly waived as a matter of law. Thusm the league is unlawfully overreaching with unconscionable language, which could possibly nullify the entire contract depending upopn NY law, and a savings clause.

    Also, thank you for continuing to give communication space to the Kaepernick matter as a bellweather of American zenophobia in general, which gives rise to discrimination. Every Citizen should spend a year of public service in a third world country, as a mere beginning to understand acceptance, just how easy life is here, and to understand what our armed forces personnel already know. Also, this parallels a similar legal requirement in Switzerland, a very conservative country.

  43. Somehow you seem to be implying the NFL shouldn’t protect itself against liability by Kaepernick and his Nike team of ambulance chasers!

  44. If Kaepernick comes to any team in the NFL don’t be surprised if their fan base diminishes. He’s a bad bet for the NFL and frankly America.

    He had his chance and he chose to squander it. I don’t feel sorry for the attention hog.

  45. He opted out remember that. I don’t care what your argument is the guy opted out he wasn’t cut and he wasn’t released he opted out…Repeat that over and over again Colin Crapernick opted out on his own he’s not guaranteed a contract under any circumstances he opted out…period

  46. He opt out b/c he was told he was going to be cut. WTF you care? He’s clearly been pushed out if the league. And now you see that from a legal standpoint, the workout has an hidden agenda.

  47. This is not the standard agreement. If it was the case, all suits against the NFL would never get before a judge. And, as we know, many, many player suits have been brought before a judge the last 10 years or so. That in itself exposes the NFL’s argument. Kaep was right not to sign it. And 8 teams got to see him workout so not sure why people think he doesn’t want to play. It was a poison pill waiver. Fact.

  48. Any and everyone saying this was a standard waiver is either being disingenuous or unaware that it’s not. A simple Google search and even reading between the lines in this article will confirm that. The NFL said they gave Kapernick a standard liability waiver. Now do your research and it will show that it’s entirely untrue. Please stop it. You may have your heart and mind made up but at least be truthful.

  49. Kaep. May as well hang Em up ! Even if he humbles himself he’ll be ean through NFL Red Tape , further blackballed ! There maybe 3 teams will the nerves to pick him up, But do they want to go through the NFL Faturnity B.S ?! NOT !Any team pic.s up Kaep will be considered the Black Sheep of the league ! Smoke and Mirrors

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