In Kaepernick case, NFL makes safe call
The NFL owners worried about a protracted legal fight. They fretted over potentially embarrassing disclosures. They were concerned about further alienating fans and sponsors. So they took the unusual step of reaching a settlement rather than continue to battle an adversary that was viewed in some circles as a victim of the league’s sharp elbows.
All of this happened nearly six years ago, when the league found it more expedient to pay hundreds of millions of dollars to retired players who contended the NFL had concealed the dangers of repeated hits to the head. Among other things, the 2013 concussion settlement enabled the league to avoid the acute discomfort of battling in court with former players who had suffered neurological damage.
In many ways, the NFL followed this same road map Friday when it announced that it had reached another settlement, this time with former San Francisco 49ers quarterback Colin Kaepernick and his former teammate Eric Reid. They had accused the owners of colluding to keep them out of the league because they had knelt during the playing of “The Star-Spangled Banner” at games, an action that prompted other players to do so as well.
The NFL has a reputation for taking a scorched-earth legal strategy, and its decisions to settle in both cases have been viewed by some as admissions of guilt. In fact, the league did not acknowledge wrongdoing in the concussion settlement, and it is not clear what it may have admitted in Friday’s settlement because of a confidentiality agreement.
Still, by settling each time, the owners may have calculated that they and many fans could then try to move past the contentious issues at the heart of the two cases — the long-term effects of repeated head trauma in the first instance, and the right of players to protest in the second instance.
“There are broader issues than just money that the league considers,” said Matthew Mitten, director of the National Sports Law Institute at Marquette University. “They need to take into account social issues and public perception.”
The two cases are different. One was a class action involving 20,000 retired players who sued in federal court, the other a grievance filed under the collective bargaining agreement. The league stood a chance of winning both cases had it persisted, but each case generated years of negative publicity. So the league, which earns $14 billion a year, was in a position to spend money to make both cases go away.
Significantly, the two settlements provide the league with a measure of protection, Mitten said. The concussion settlement precludes players in the future from suing the league for concussion-related damages, and the settlement with Kaepernick and Reid avoided any adverse precedent being set.
Kaepernick had not played a down since the end of 2016, yet he continued to hover over the league. Every time a backup quarterback was signed, Kaepernick’s name was invoked, if only to ask why he remained unsigned.
Before the 2018 season began, Kaepernick persuaded the arbitrator in his case to dismiss the league’s attempts to throw out his grievance. Then he announced a lucrative endorsement deal with Nike, which provides uniforms to all 32 NFL teams. To add to the owners’ discomfort, Nike also made Kaepernick a face of its “Just Do It” campaign, putting out a commercial narrated by him during the opening game of the season.
“This has been a PR nightmare for the league and, in some sense, it’s remarkable that Kaepernick proved himself to be a larger public figure than the NFL with his Nike deal,” said Michael Leroy, who teaches sports law classes at the University of Illinois, Urbana-Champaign. “He outshined the league in a very significant way.”