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Inside the waiver proposed by the NFL to Colin Kaepernick

Relive the best moments from Thursday's ProFootballTalk as Chris Simms gives his realistic expectations for Nick Foles return, as well as which teams could benefit from signing Kaepernick.

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.