Sports

Colin Kaepernick's botched NFL workout could strengthen case for second collusion lawsuit, sports lawyer says

Key Points
  • Free-agent quarterback Colin Kaepernick has not played an NFL game since the 2016 season.
  • Kaepernick settled a collusion lawsuit with the NFL in February for an undisclosed amount.
  • The NFL and Kaepernick couldn't agree on the terms of his workout in Atlanta on Saturday. 
Colin Kaepernick visits with fans following his NFL workout held at Charles R. Drew High School on November 16, 2019 in Riverdale, Georgia.
Carmen Mandato | Getty Images Sport | Getty Images

It's been almost a week since the National Football League's botched its scheduled workout with free-agent quarterback Colin Kaepernick, with no resolution in sight.

The blunder could actually work in Kaepernick's favor if the Super Bowl quarterback decides to bring another lawsuit against the league, sports and gaming attorney Daniel Wallach of South Florida-based firm Wallach Legal, said in an interview with CNBC.

"All of the circumstances surrounding this tryout out really looks inauthentic," Wallach said. "The failure to reach an agreement with Kaepernick's attorneys on the scope of the release. The timing. The closed nature of it. The disagreement over the filming of it."

Some in the very group Kaepernick has to convince – NFL owners – are already suggesting they won't consider the 32-year-old quarterback who led the San Francisco 49ers to Super Bowl XLVII in 2013.

Cowboys owner Jerry Jones called the situation between Kaepernick and the NFL "unfortunate," according to an interview with Dallas-based radio station 105.3 The Fan. He said the Cowboys aren't currently seeking a quarterback; hence, there was no reason to have team representatives attend his workout last weekend in the Atlanta area.

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One NFL team owner wondered how Kaepernick can help a team in the short and long-term, believing he doesn't fit into his team's future quarterback plans.

The owner, who asked not to be named due to the sensitivity of the situation, did not doubt Kaepernick can still perform. Kaepernick's actions last weekend made him think the quarterback doesn't want to play or will only return on his terms, he said.

Kaepernick decided to hold his own workout after he and the league couldn't agree on the waiver the NFL insisted he sign beforehand, releasing the league of liability in case he was injured. Kaepernick's lawyers thought the waiver went too far and offered their own version, which the NFL said was "insufficient."

Although Kaepernick said he's "been ready for three years," the team owner said the dispute over the workout shows he doesn't genuinely want to return to the field.

Kaepernick's agent Jeff Nalley didn't immediately return a request for comment.

Sports Illustrated reported that the versions were dramatically different. Kaepernick's version accepted all injury-related risk associated with the workout. The NFL's waiver was reportedly much broader, with language preventing Kaepernick from filing another lawsuit against the league if he isn't signed by a team.

"They are arguing that this is just a standard release," Wallach said. "There is absolutely nothing standard or typical about the relationship between Colin Kaepernick and the National Football League. It's one that is grounded in distrust and has a history of ligation behind it."

Wallach said the NFL "wanted to eliminate the possibility that he would be able to sue them if he didn't get a contract offer as a result of this workout."

"I think the NFL was focused on that narrow argument, but the way the clause was drafted was so over broad that you could drive a truck through it," he said, adding that it waived a number of other employment claims Kaepernick may have against the league. "No lawyer would let a client sign an agreement like that."

And now, two of the biggest questions remaining: Did the league attempt to disguise a workout to protect itself from future collusion lawsuits like the one it settled with Kaepernick earlier this year? And if he's not employed soon, can Kaepernick pursue legal action again?

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Though the case was settled out of the courts, Wallach said he doesn't believe it absolved the NFL from further legal action if he can't get signed.

Every day Kaepernick remains a free agent is "one more piece of ammunition" for a second collusion lawsuit, Wallach said.

"If the NFL really wanted to truly give Colin Kaepernick a chance to play football this year, there were 32 teams that certainly would have a significant upgrade in their quarterback room simply by having him on the roster. There [aren't many] No. 3 quarterbacks in the NFL, or even No. 2 quarterbacks in the NFL, that are better than Colin Kaepernick."