There is far more we don’t know about the Colin Kaepernick/NFL/collusion settlement than we know, because the terms of the deal announced Friday are confidential and have not leaked. So it’s wrong to knock Kaepernick for caving, because we don’t know what his options were; if he and his counsel felt they faced a certain loss in the case to be heard by arbitrator Stephen Burbank, why just take the loss without dinging the NFL? It’s wrong to assume the NFL felt it was going to lose the case and thus settled; if that were the case, why would Kaepernick have taken a deal?
I know three things that influence my opinion of the case:
• One: When the depositions given by NFL people in the case were complete, those inside the league felt confident that nothing was said by a league executive or employee that could be deemed damaging enough to prove the case that two or more teams colluded to limit Kaepernick’s NFL employment. Very confident. Maybe that’s right; maybe it isn’t. Now, in the time between the end of the depositions and now, could some attorney have told Roger Goodell or his top legal lieutenant, Jeff Pash, that they might have liability with something in one or more of the depositions? I don’t know that. But the big reason why so many who covered this story were surprised was because they didn’t see it coming—that’s how confident the NFL was in its case.
• Two: The NFL is coming off a strong season, with no mega-controversies (till the woefully handled missed pass-interference call in the NFC title game, with the league office’s clumsy attempt to bury it by ignoring it for 10 days) and an uptick in TV ratings and an influx of new stars like surprising young MVP Patrick Mahomes, Baker Mayfield and Saquon Barkley. The Bears and Rams and Chargers lifted dormant or down markets. Concussions were down a significant 23 percent year over year, giving hope that the game can be made safer. Roger Goodell mostly stayed out of sight during 2018, which turned out to be a pretty good strategy—fans didn’t have the commissioner on whom to focus their anger. With all that giving the NFL momentum this offseason, it’s probably a smart investment for the league to make the Kaepernick problem go away.
• Three: This comes from an excellent summation of the legality of the settlement from the University of New Hampshire’s associate dean of the School of Law, Michael McCann, writing for Sports Illustrated: “The loser of Burbank’s award could have challenged it in federal court, thereby creating public records with detailed information about the grievance. The NFL has long tried to avoid the discovery process and disclosure of any discovery.” Smart. So even if the NFL were to win the arbitration, Kaepernick could have appealed, and attorney Michael Geragos could have filed to force an appeals court to open up the NFL’s depositions.
In the end, if you’re talking a just way for this to end and you believe (as I do) that Kaepernick is likely to never play in the NFL again, he deserves a multi-million-dollar settlement, if that’s what he got. He did exacerbate what was a dicey situation already with his own actions, once wearing socks with pigs dressed as police officers. There were times when critics saw him as more interested in being a victim than a football player. Regardless, he didn’t deserve to be shunned by 32 teams.
I’ll always think Kaepernick hasn’t found NFL employment in 25 months because of business reasons, not football ones. I believe some teams have had interest in signing Kaepernick as a backup quarterback who may have been able to work his way into the starting job—on some teams—when the noise died down. But interested coaches and GMs with some franchises would have had to battle the business side of the organization and possibly the owner to get the deal done. That wouldn’t have to happen in a place like New England. If Bill Belichick wanted Kaepernick, I’ve got to think owner Robert Kraft would agree to let him make that move. (Maybe that’s why that rumor got some legs over the weekend, though I couldn’t find any confirmation of any interest by New England in Kaepernick.)
In the end, this became about more than whether Kaepernick’s free-wheeling style of play would fit a particular offense. It became about business, and whether Kaepernick would have indelibly affected the bottom line over the football product.
In my opinion, those issues are more specious than real, but I’m not the one running a team. It’s an unfulfilling end to the Kaepernick/NFL saga, if this is it. But we don’t get to choose the end that seems most satisfying or fair.
