NFL Settles Colin Kaepernick Collusion Suit

A confidential agreement has ended a collusion suit filed against the National Football League in 2017.

A settlement has been reached in a collusion suit filed against the National Football League in 2017. Details are scant.

ESPN (“Colin Kaepernick, Eric Reid settle grievances against NFL“):

Former San Francisco 49ers quarterback Colin Kaepernick and current Carolina Panthers safety Eric Reid have reached a settlement with the NFL concerning their collusion grievances against the league, it was announced Friday.

“For the past several months, counsel for Mr. Kaepernick and Mr. Reid have engaged in an ongoing dialogue with representatives of the NFL,” attorney Mark Geragos and the NFL said in a joint statement issued Friday. “As a result of those discussions, the parties have decided to resolve the pending grievances. The resolution of this matter is subject to a confidentiality agreement so there will be no further comment by any party.”

Kaepernick filed a grievance in October 2017 under the collective bargaining agreement, alleging collusion against signing him to an NFL contract.

The filing, which demanded an arbitration hearing on the matter, said the NFL and its owners “have colluded to deprive Mr. Kaepernick of employment rights in retaliation for Mr. Kaepernick’s leadership and advocacy for equality and social justice and his bringing awareness to peculiar institutions still undermining racial equality in the United States.”

NFL commissioner Roger Goodell, along with several owners and at least two other NFL executives, were selected to be deposed and asked to turn over all cellphone records and emails in relation to Kaepernick’s case against the NFL.

[…]

Kaepernick and Reid faced a difficult challenge to meet the burden of proof for collusion as defined in the league’s CBA. The statute makes clear that unemployment alone does not mean collusion occurred.

According to the CBA: “The failure by a club or clubs to negotiate, to submit offer sheets, or to sign contracts with restricted free agents or transition players, or to negotiate, make offers, or sign contracts for the playing services of such players or unrestricted free agents, shall not, by itself or in combination only with evidence about the playing skills of the player(s) not receiving any such offer or contract, satisfy the burden of proof set forth ….”

To prove collusion, according to the CBA, Kaepernick and Reid would have had to show that a “club, its employees or agents” had “entered into an agreement” to restrict or limit whether to offer them a contract.

Jason Reid, writing for ESPN’s African American-geared subsite The Undefeated takes the early prevailing position when he declares, “Colin Kaepernick won. Period.”

Make no mistake: Colin Kaepernick won.

Facing the most formidable foe of his career, Kaepernick stood his ground — and the NFL backed down. Although the terms of the league’s settlement with Kaepernick and Eric Reid — close friends and former San Francisco 49ers teammates who, in collusion grievances, alleged owners conspired to keep them unemployed because of their political activism — announced Friday are cloaked in a confidentially agreement, Kaepernick’s victory is as clear as his talent as a quarterback.

The NFL finally admitted as much, ending its lame arguments about why Kaepernick remains unsigned after last playing for San Francisco in 2016. That was the year Kaepernick sat and then kneeled to draw attention to police brutality and systemic oppression. Reid was the first player to kneel alongside him.

At the Super Bowl in Atlanta last week, NFL commissioner Roger Goodell continued to push the company line, essentially saying no teams believe that Kaepernick is capable of helping them win. It’s one thing to offer that tripe to the media. It’s quite another, however, to convince an arbitrator that none of the league’s 32 teams could use a passer who has made 58 career starts, helped a team reach a Super Bowl, is only 31 years old and has the fourth-best touchdown-to-interception ratio of all time.

Kaepernick’s grievance was expected to go to a full hearing sometime this year, and the NFL was facing the possibility of massive financial liability if it lost. Without a winning hand, the NFL decided to fold, said Stanford Law School professor William B. Gould IV.

An expert in labor law, Gould has closely monitored the developments surrounding the Kaepernick and Reid grievances. He wasn’t surprised by the league’s exit strategy.

“The NFL had to have some measure of concern about substantial liability,” said Gould, who served as chairman of the National Labor Relations Board from 1994-98. “The damages [awarded to Kaepernick] could have been considerable. For Kaepernick [to settle], it seems to me this has to be [financial] compensation. And I would think substantial compensation. Kaepernick certainly comes out of this a winner.”

The NFL is the most powerful sports league on the planet. It has virtually inexhaustible financial resources. It has top-notch lawyers. And it is fiercely protective of its image — the whole thing about not tarnishing the shield and all.

For the NFL to have settled with Kaepernick and Reid, who alleged that the owners attempted to ruin their careers because they chose to shine a light on racial injustice, well, that’s a horrible look for Goodell and the billionaires whom he serves. And the fact that the league found this option more palatable than continuing its fight reveals the level of its long-running palpable concern about the Kaepernick-Reid situation.

But I tend to side with ESPN’s Kevin Seifert (“Everything we know about the NFL’s joint collusion grievance settlement with Colin Kaepernick, Eric Reid“):

So did the NFL think it would lose? Or did it want to avoid discovery?

The latter, most likely. It’s also likely that the NFL viewed a settlement as an important milestone in moving past a controversy that drew the ire of President Donald Trump, among others. But the facts are eye-opening. Kaepernick began taking a knee during the national anthem in 2016 to protest police brutality and system racism. In a league that is in perpetual need of quarterback depth, Kaepernick isn’t known to have received a single firm contract offer since he parted ways with the San Francisco 49ers in May 2017.

The NFL, like most multi-billion dollar industries, is incredibly secretive about its inner workings and extremely sensitive about its public image. The whole kneeling controversy started by Kaepernick has been bad for its image. And, while it’s highly unlikely that discovery would have produced a “smoking gun” definitely proving collusion against Kaepernick and others, it’s almost a certainty that it would have revealed private conversations among owners and League officials that would have proven embarrassing.

My own guess is that there was no according-to-Hoyle collusion here but quite likely some informal pressure among the owners against signing Kaepernick. While he had a few stellar months as 49ers quarterback after he replaced Alex Smith, carrying the team all the way to the Super Bowl before losing the big game, he was at best mediocre after that. By the time he started kneeling during the anthem, he was already a backup quarterback. Few owners would have been interested in taking on the media circus that would accompany a Kaepernick signing given his low ceiling. Further, most of the owners are old and conservative and most NFL cities are rather conservative as well. Jerry Jones would never in a million years have signed Kaepernick as a backup for the Cowboys.

Still, Kaepernick is certainly better than quite a few guys holding down a job as a backup in the NFL. And there have been teams, like the Washington Redskins this season, who had catastrophic injuries at quarterback and wound up with starters considerably less talented than Kaepernick. Under true free market conditions, somebody would have bought low on him and taken on the risks. Clearly, there was something else going on.

Right now, we have no idea what the settlement terms are and we won’t unless and until someone breaks the confidentiality agreement. One imagines Kaepernick got a decent settlement, though, to make this go away. (Reid’s continued presence in the case is stranger still, in that he was ultimately resigned by the Panthers on a short-term deal and recently signed a three-year extension. One presumes he got very little if anything from the settlement.)

FILED UNDER: Law and the Courts, Sports
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. James Pearce says:

    Details are scant.

    That hasn’t stopped a whole bunch of folks from saying that Kaep “won” here. I’m sure he got something, perhaps millions of somethings, but he’s never going to play in the NFL again.

    Also, I think this holds true for the teams with less-talented starters in catastrophic situations:

    “Few owners would have been interested in taking on the media circus that would accompany a Kaepernick signing given his low ceiling.”

    I can see how nearly every team who found themselves in that situation would prefer to finish out the season with a mediocrity than to invite all that drama.

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  2. Slugger says:

    @James Pearce: If I got a couple of million dollars with no risk of Ndamukong Suh pounding me, I’d consider that a victory. Kaep might even consider being in a very prominent Nike ad whose detractors have achieved zero a victory.

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  3. Daryl and his brother Darryl says:

    @James Pearce:

    That hasn’t stopped a whole bunch of folks from saying that Kaep “won” here.

    You seem to have a complex problem with the very simple concepts of winning and losing.

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  4. Mr. Prosser says:

    @James Pearce: I refer you to Scott Lemieux at LGM According to Bleacher Report’s Mike Freeman, several people high-up in the league estimate that the settlement amount for Kaepernick could be in the range of $60-$80 million dollars.
    Again: Leagues do not capitulate like this unless the evidence against them is so graphically obvious, the alternative to settling is far worse than any other option… for the NFL to settle, the NFL had to know that the evidence against it was irrevocable.

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  5. @James Pearce: The reason for those pronouncements is: because he won.

    This isn’t hard.

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  6. James Pearce says:

    @Slugger:

    If I got a couple of million dollars with no risk of Ndamukong Suh pounding me, I’d consider that a victory.

    A football player wouldn’t…

    @Daryl and his brother Darryl:

    You seem to have a complex problem with the very simple concepts of winning and losing.

    I do? Kaep settled –not won, settled— will never be a part of anything related to his football career –not one more down, no happy reunions, no post-career honors– and he can’t talk about any of it.

    @Mr. Prosser:

    I refer you to Scott Lemieux at LGM According to Bleacher Report’s Mike Freeman

    I saw that too. It’s a confidential agreement so I’m skeptical there’s a factual basis for coming up with that number. It may be an educated guess.

    And it may just be wrong.

    Also: To the non-football fans, there’s a new football league that started this year. It’s called the AAF. Before the season started, they expressed interest in signing Kaepernick.

    He did not sign.

    @Steven L. Taylor:

    The reason for those pronouncements is: because he won.

    I can tell you what the NFL “won” and I don’t even need to know the terms. They put this behind them, they didn’t have to open the books, and whatever the price, they bought Kaep’s silence.

    What did Kaepernick win?

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  7. Kathy says:

    I guess in Bizarro world, the person who comes out ahead is labeled a loser?

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  8. Gustopher says:

    Further, most of the owners are old and conservative and most NFL cities are rather conservative as well.

    I disagree on the cities. NY, Boston, Washington, Chicago… actually all cities, really. You may be right if you stretch it out to the states, but really, it’s the owners.

    And the publicity. They would loose the 27% on the far right as possible fans. Apparently, just losing games if they have worse players is less worse for their revenues.

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  9. Gustopher says:

    @James Pearce:

    What did Kaepernick win?

    Money.

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  10. Gustopher says:

    @Mr. Prosser:

    Leagues do not capitulate like this unless the evidence against them is so graphically obvious, the alternative to settling is far worse than any other option… for the NFL to settle, the NFL had to know that the evidence against it was irrevocable.

    NFL viewership is down, and kids are playing soccer. Donald Trump has tied himself to the NFL not hiring Kaepernick, and has pushed away a chunk of the the more politically interested on the left. $60 million is abut $2 million per team? That might be worth it to try to make this go away.

    The NFL is in a crappy spot, on a culture war that they want no part of, which is hurting their brand. There might not be any smoking guns, just a desire to make this go away.

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  11. James Pearce says:

    @Gustopher:

    Money.

    Well, yeah. But I was lead to believe he was fighting for something larger than hush money.

    Honestly, I read the news this morning and Eliot came to mind: “Not with a bang, but with a whimper.”

    Also you’re right about this:

    The NFL is in a crappy spot, on a culture war that they want no part of, which is hurting their brand.

    And they’ve been getting it from both sides, neither of which is non-toxic, for years. They just want to play football.

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  12. Just nutha ignint cracker says:

    @Kathy: I can’t say for Bizarro World, but in it’s capital city of Pearceatropolis, that what they say.

    Besides that the mayor will ask how do you know he won if it’s covered by non-disclosure?

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  13. Just nutha ignint cracker says:

    @James Pearce: This whole issue was nothing but a whimper even before Trump started whining about it and you started supporting him on it.

    Watched the first game of the AAF. Not bad. And I like the unpredictability that comes with the less skilled player pool. Makes the game more interesting when getting into the red zone doesn’t guarantee a score.

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  14. James Pearce says:

    @Just nutha ignint cracker:

    This whole issue was nothing but a whimper even before Trump started whining about it and you started supporting him on it.

    I opposed the protests as muddy messaging and divisive. Trump demagogued on it –as he does– but so did the left with their unconscionable racialization of the issue.

    Still haven’t watched any of the AAF, but I have heard good things, specifically from NFL fans turned off by all the politics in NFL football these last few years.

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  15. EddieInCA says:

    1. I have alot of friends who work for the NFL. Wrap your head around $70 million, all at once, with the NFL ALSO PAYING THE TAXES ON THE $70M. He’s going to get $70M TAX FREE.

    2. To Mr. Pearce: Why the F do you think NFL players play in the NFL? It’s not for the love of the game. It’s because they can make 10X what the average American makes, even for sitting on the bench. The minimum NFL salary is $500K. You get vested after four seasons. Even if you only play four seasons, you walk away with a pension and $2M.

    3. To Mr. Pearce again: Make no mistake about, Kaepernick won. And only assholes like you who didn’t like the message he was putting out, think otherwise.

    4. Dr. Joyner – You’re WAY WRONG. Eric Reid also got a huge settlement. His number is around $30M. The NFL paid over $100M to make this go away.

    5. I’m still with Kap. He’s going to use the money to INCREASE his social justice stance. And he’ll be doing it with the NFL’s money.

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  16. @EddieInCA:

    He’s going to use the money to INCREASE his social justice stance. And he’ll be doing it with the NFL’s money.

    Indeed, this seems likely. Sure, he can’t talk about collusion to blackball him, but that was never his central message. Between the Nike money and the settlement, he is freer than he was before to do whatever he wants, including talking about the topics that led him to kneel in the first place.

    How this isn’t winning, I do not not know.

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  17. A general comment to this thread: I know that NFL rating are down from peak, but let’s not pretend like it is a failing business, or that people are leaving in droves over politics.

    The Super Bowl, which was not exactly the most entertaining game of all time, and had lower ratings than normal as a result, still garnered 98ish million TV viewers and 2 million online viewers. Given today’s fragmented media market, that is still gold.

    Indeed, regular season ratings were up this season.

    While I do think things like concussions and traumatic brain injury could threaten the league, the notion that politics is turning people away in droves is ridiculous.

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  18. James Pearce says:

    @EddieInCA:

    Why the F do you think NFL players play in the NFL? It’s not for the love of the game.

    How do you think the NFL players got there? 6-10 years of playing unpaid games where they were motivated by other things, love of the game, the respect of a mentor, the spirit of competitiveness, the desire to accomplish goals and earn accolades. Of course they play for money. But other stuff is going on too.

    Also, I didn’t call you an asshole for arguing that “he won” so I don’t think I deserve to be called an asshole for saying he didn’t.

    He didn’t. He settled and if the NFL colluded to keep Kaepernick out of the league, they succeeded. His football career is over. The NFL is going to chug along without him, unchanged. They paid him tens of millions of dollars? He already had more money than he could ever spend.

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  19. James Pearce says:

    @Steven L. Taylor:

    the notion that politics is turning people away in droves is ridiculous.

    Last season was mercifully free of the yes, political drama that has plagued the league from 2014* on.

    * I’d date it to the season the Ray Rice thing blew up, with the 2016 season being the peak.

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  20. DrDaveT says:

    And, while it’s highly unlikely that discovery would have produced a “smoking gun” definitely proving collusion against Kaepernick and others,

    I have no idea why you think that’s unlikely. Major sports team owners have a really, really bad track record in this regard.

    it’s almost a certainty that it would have revealed private conversations among owners and League officials that would have proven embarrassing.

    That goes without saying. The private conversations of the powerful are ALWAYS embarrassing when made public, even setting aside the Kaepernick situation. For every comment hinting at collusion, there were probably half a dozen that were the moral equivalent of “grab ’em by the pussy”.

    My own guess is that there was no according-to-Hoyle collusion here but quite likely some informal pressure among the owners against signing Kaepernick.

    Uh, James? Informal pressure is collusion. Formally and legally and according to Hoyle.

    My personal guess is that the NFL knew that there was evidence out there that would be highly suggestive of collusion, and further suspected that a “smoking gun” would pop up somewhere in the email and text and voicemail trails. In other words, they knew they were guilty — they settled because that makes the legal liability go away, even while being tantamount to a confession in the court of public opinion.

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  21. EddieInCA says:

    He didn’t. He settled and if the NFL colluded to keep Kaepernick out of the league, they succeeded. His football career is over. The NFL is going to chug along without him, unchanged. They paid him tens of millions of dollars? He already had more money than he could ever spend.

    Do you know why Kaepernick wanted back in the league? TO GET PAID.

    HE WON upwards of $70M. And that doesn’t include the Nike money?

    Unchanged? You think the NFL is unchanged because of Kaepernick? You’re out of your mind.

    And, yes, at the risk of being banned, you ARE an asshole. You prove it daily by your inability to admit when you’re wrong, which is easily enough to prove here with archives.

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  22. wr says:

    @Steven L. Taylor: “How this isn’t winning, I do not not know.”

    To Pearce, if the side he dislikes doesn’t get absolutely everything they had ever dreamed of asking for, they lose. And if the side he likes gets even the tiniest fraction of what they wanted, they won.

    He seems to share Trump’s complete lack of understanding of how negotiations work — that generally one side does not get everything while the other gets nothing.

    So if Kaep got tens of millions of dollars but didn’t end the problem of cops violating the civil rights of African Americans, then he is a total loser. And since he is a total loser, clearly the NFL is the big winner here.

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  23. wr says:

    @James Pearce: “He didn’t. He settled ”

    So if I am injured by, say, a faulty drug, and I sue the manufacturer for one hundred million dollars and they come back and settle for fifty million before we go to trial I lost?

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  24. Just nutha ignint cracker says:

    @James Pearce: Never paid any attention to the politics of the NFL, but also stopped watching games when I was about 18. Got a job working nights and needed to take a nap before my 7 pm shift started on Sundays. But AAF is worth a watch, mostly for the same reasons that NCAA II and III and NAIA football is.

    ETA: “The Super Bowl, which was not exactly the most entertaining game of all time…”
    It wasn’t even as entertaining as the Kickoff game for AAF. I’m soo sad :-(, because this is the first Super Bowl I’ve watched in over 30 years.

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  25. James Joyner says:

    @EddieInCA: Where are you getting these numbers?

    @DrDaveT: IANAL but don’t believe not willing to take the heat from other owners who are vehemently opposed to signing a given player constitutes “collusion.” Collusion is really hard to prove. Barry Bonds couldn’t prove it when no team would sign him in 2008, even at league minimum salary, coming off a 2007 season in which he hit 28 home runs.

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  26. Kathy says:

    @wr:

    So if I am injured by, say, a faulty drug, and I sue the manufacturer for one hundred million dollars and they come back and settle for fifty million before we go to trial I lost?

    My understanding of the Trumpidian troll mind, suggest if the drug company settled for $99,999,999.99, you’d also have lost.

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  27. Tyrell says:

    @Kathy: A few teams have been talked around as maybe interested in Kap the Panthers and Patriots. In both situations he would be a backup, a sidelines person. That is as good as he is going to get. A starter – forget it.

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  28. @James Joyner: In my opinion, the issue was not ever going to be proving “collusion” in court, it was going to be the PR hit taken by the league over revelations that I suspect were going to be very embarrassing.

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  29. @Tyrell:

    In both situations he would be a backup, a sidelines person. That is as good as he is going to get. A starter – forget it.

    This was never about no one signing him to be a starter. It was always about the incredible notion that he was not good enough to even be a backup (or even a try out to be a backup). That never passed the smell test.

    It is impossible to fathom that every team in the league independently considered him to be worse than all 32 existing 2nd stringers (indeed, worse than all 32 3rd stringers). If he had been invited to camp, or to try out, then this would have all gone away.

    This is a league in which Jay Cutler came out of retirement in 2017 to play a year for the Dolphins, but Kaepernick did not get a call.

    The real test was when Washington lost both Smith and Applewhite, and still no call. The odds that Kaeprnick was a better choice that Mark Sanchez was high–and certainly there is every reason to think he would have been an appropriate backup.

    And speaking for myself as a Dallas fan, I would have rather have had Kaepernick at least try out for backup than have Kellen Moore as backup in 2017 or Cooper Rush in 2018.

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  30. DrDaveT says:

    @James Joyner:

    IANAL but don’t believe not willing to take the heat from other owners who are vehemently opposed to signing a given player constitutes “collusion.”

    IANAL either, but “the other members of the cartel will be unhappy if I do this” sounds like the textbook definition of collusion. The question of fact is whether you were just guessing that they would be unhappy, or whether they had said and done things (e.g. public or private statements) to give you a hint. Which would be collusion.

    Barry Bonds couldn’t prove it when no team would sign him in 2008, even at league minimum salary, coming off a 2007 season in which he hit 28 home runs.

    “Not proven” is not the same thing as “not guilty”. Not to mention that Bonds’s situation was totally different — he was facing charges of perjury and obstruction of justice, among other things. Plus being 44 years old, and essentially immobile.

    Also, as I understand it, Bonds did not in fact file a lawsuit — he filed a grievance under the CBA, which was decided not by a court buy by an arbitrator. I suspect that made a difference.

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  31. @DrDaveT: I have to agree with DrDaveT on this, that sounds like collusion to me.

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  32. Speaking again to why I think something was going on: the NFL is talent-hungry to the point that teams constantly sign criminals to their squads. It is beyond reasonable for me to accept that every team decided, independently, that Kaepernick was so washed up that he didn’t warrant a real chance at a squad, let alone that when it comes to the QB position there aren’t 32 bona fided starters, let alone another 32 backups and 32 3rd stringers.

    If Mark Sanchez keeps getting called up, that says a lot.

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  33. EddieInCA says:

    James Joyner says:
    Monday, February 18, 2019 at 07:47

    @EddieInCA: Where are you getting these numbers?

    Dr. Joyner, I have friends, close friends, who work for the NFL. Total payout for Reid and Kaepernick will be more than $100M, tax free. Eventually, it will come out. Kaepernick’s was based on 7 years at $10M per year, plus tax indemnification.

    Frankly, the NFL got off cheap. Kaepernick could have won upwards of $500M in punitive damages had the emails, texts, and testimony gone public, especially with a NYC (where the NFL is based) jury. There is no doubt there was collusion. The NFL hired two players this year, as backup QBs, who hadn’t played in an NFL game for a much longer time than Kaepernick, without his resume, rather than hire Kaepernick.

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  34. EddieInCA says:

    @Tyrell:

    https://theundefeated.com/features/33-quarterbacks-signed-before-colin-kaepernick-free-agent/

    Click on the link. Half the guys on the list never threw and NFL pass yet they were “better” than Kaepernick? Not an effing chance.

    Of the 33 signed, perhaps 8 are legitimate NFL quarterback. The rest could’t carry Kaepernick’s jock. Kaepernick took his team to the Superbowl, don’t forget.

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  35. James Pearce says:

    @Steven L. Taylor:

    If Mark Sanchez keeps getting called up, that says a lot.

    No one wants Tim Tebow either.

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  36. @James Pearce: Tebow is not very good. Further, he had chances with 4 teams. Even the Patriots could not find a way to use him.

    Kaepernick played for only the one team. You Tebow examples (three chances after Denver) helps make my point.

    Also: had Tebow been willing to play FB or maybe TE, he probably would have had some additional chances.

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  37. James Pearce says:

    @Steven L. Taylor:

    Tebow is not very good.

    When this controversy started, that was the 9ers thought of Kaep, too. They preferred Gabbert.

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  38. @James Pearce: Amazingly, you can’t even address evidence offered in good faith in this context.

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  39. James Pearce says:

    @Steven L. Taylor: I can’t possibly fathom why any team would find any merit in giving Mark Sanchez a coveted spot on their roster, but I do know these things are tremendously complicated. It’s not just about talent. Sometimes it’s about chemistry, and sometimes it’s about a relationship and sometimes it’s about money, so those 96 theoretical spots are more like 12. You’re not counting Tom Brady’s spot in there, are you? You think Kaepernick is going to go compete for the starting job in New Orleans with Drew Brees? Some of those positions aren’t even available, and the ones that are, are they even workable from a professional football standpoint?

    Kaepernick can throw a good pass, but every year there’s a whole new class of young guys who can do the same. But you know what’s different about them? They haven’t yet priced themselves out of a backup spot on an idling team with a QB hole.

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