Sport Legalese, mistrust and late negotiating: How Kaepernick, NFL broke apart on workout

22:40  21 november  2019
22:40  21 november  2019 Source:   usatoday.com

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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.

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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.

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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.

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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 out of 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.

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 unlike any other – and so was the waiver.

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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 unlike the language that appeared in waivers for teams or the combine.

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. 

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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 out of, 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 out of, 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.

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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. 

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Kaepernick’s mission accomplished, but ...

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 Twitter @ByMikeJones.

This article originally appeared on USA TODAY: Legalese, mistrust and late negotiating: How Colin Kaepernick and the NFL broke apart on workout

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