Tom Diehl Nov. 19, 2019

Have you heard about the big dust up between the NFL and Colin Kaepernick?  If you possess even a passing interest in professional football, I am sure you have.

For those who couldn’t care less about football you should still keep reading.  While the main characters in this note are the NFL owners and a disgruntled ex-quarterback, this note is about contracts and releases and purposefully confusing writings often employed by attorneys, and not about touchdowns and tackling. 

A little background – Colin Kaepernick used to play quarterback for the San Francisco 49ers. He was pretty good.  He took a team to the Super Bowl. Things got complicated when Colin decided to make a statement about injustice he perceived existing in America, by kneeling during the Star-Spangled Banner.  Soon after that started, Colin was no long quarterbacking a team in the NFL. Colin says he was being targeted by the owners because he took a stand. The owners said he wasn’t a good quarterback.  

After three years of being out of the game, the NFL agreed to stage a workout/tryout for Colin to show the 32 team owners what he still had left in the tank.  It was a big deal. The press was ready. Nike was going to film a commercial. It was going to be televised.

But first, the lawyers had to be satisfied.  The NFL sent Colin a waiver to sign before they would allow him to participate.  The NFL said it was a standard release so that Colin would not be able to sue the NFL if he got hurt during the workout.  Seems fairly reasonable. But I have reviewed the release. It is three pages and almost 1000 words. Why does it take 1000 words to say Colin couldn’t sue the NFL if he were hurt during the workout?   

The release does a lot more than the NFL claims.  Had Colin signed it, he would, among other things, have released the NFL (and its owners) “from and against any and all claims, actions, causes of action, suits, grievances, costs, caused by, arising out of, or related, directly or indirectly to the workout”.  That is ridiculously vague and broad. Why does Colin have to waive all claims he has against the NFL? 

A good legal document should be clear and concise.  It should not take a PHD in semantics to understand.  There are grammar services that will review any document and indicate the required reading level. (This essay requires 9th grade reading level, by the way.  I checked). The NFL waiver required graduate level schooling. 

I represent people injured in car accidents.  Before we can get a case resolved and before the insurance company will pay a fair recovery, the insurance company will require my client to sign a release.  There are many tricky and hidden problems with a lot of these releases. For instance, sometimes the release will specify that my client must keep the terms of the settlement confidential.  That seemingly innocuous clause can make part or all of the settlement taxable. Without such a clause the award is typically untaxed.  

Colin Kaepernick was right to refuse to sign the NFL’s release.  I suspect he had some pretty good lawyers reviewing this document and counseling him.