Colin Kaepernick’s grievance proceeding against the NFL has reached a pivotal stage: the arbitrator, Stephen Burbank, is in the process of deciding whether or not Kaepernick’s legal team has amassed enough evidence for the matter to move forward. The proceedings have been closed, so it’s tough for any outsider to know where things stand. Denver Broncos Director of Football Operations and General Manager, John Elway, spoke up yesterday in a way that was illuminating, though. It was also quite odd.
At a press conference, standing in front of microphones and cameras that were recording, Elway spoke of the organization’s failed attempt to trade for Kaepernick early in 2016, before he began his protest. The Broncos wanted Kaepernick for significantly less than the $12 million he was guaranteed to receive from the 49ers. Kaepernick quite rationally turned the offer down and remained with the 49ers. Elway, however, conflated the situation with Kaepernick’s collusion grievance, saying, “Colin had his chance here. We offered him a contract. He didn’t take it. So, as I said it in my deposition, I don’t know if I’ll be legally able to say this, but he’s had his chance to be here. He passed it.”
The whole construction of the argument doesn’t make sense to anyone who knows the context. Players turn down contracts all the time and end up signed to the team down the line. Brock Osweiler, who plays Kaepernick’s position, wanted more than the Broncos were willing to pay so they let him go. This happened the same month they were in talks with Kaepernick. The Broncos brought Osweiler back a year later when they needed a backup quarterback. There were no, “Well he had his chance” arguments.
There are also the legal consequences of discussing ongoing litigation and violating the arbitrator’s gag order to consider. Why did Elway bring up the contents of his deposition? It’s a weird moment. Watch the snippet of the video Sports Illustrated shared to get a better sense of Elway’s demeanor.
What I see when I look at that clip is someone who isn’t very smart trying to sidestep consequences by mounting a clumsy pre-emptive defense. Elway looks to be trying to pass the hot potato. But when did the potato get hot? Weren’t we told quite emphatically there was nothing to see here? I think the scales in Kaepernick’s case tipped when Electronic Arts (EA) and the video game Madden NFL came into the picture a couple of weeks ago.
For those of you who missed the news, EA edited Kaepernick’s name out of a song on the Madden NFL 19 soundtrack, and it soon came out that Kaepernick’s name had also been edited out of a song in the previous year’s edition of the game. I did some research of my own and found out that “beginning in August 2016, shortly after Kaepernick began his protest, EA began to remove him from certain aspects of the game by: (1) omitting mention of him from live commentary updates, (2) editing his name out of songs on the soundtracks, and (3) not allowing players to use Golden Tickets on him. Kaepernick-related content has been suppressed in Madden NFL 17, 18 and 19.” The NFL has a long, well-known reputation for being heavy-handed about what content is included in Madden NFL. Given that history, it’s reasonable to suspect the league’s interference.
Kaepernick’s attorneys are privy to all this information. If the arbitrator decides to allow the case to move forward, Kaepernick’s legal team will take a close look at EA and ask pointed questions that will be difficult to wriggle out of about exactly what happened when some of these decisions about Kaepernick’s presence in Madden NFL were made. Of particular interest are the live commentary updates. EA was on the record about intending to include Kaepernick and his protest in the updates and abruptly changed their mind. EA also put itself on the record being dishonest about the reason for scrubbing Kaepernick from the Madden NFL 19 soundtrack, blaming it on a mistake regarding the rights to use Kaepernick’s likeness (not how intellectual property law works). Private Investigator Twitter soon pulled the receipts about the same “mistake” having been made the year before.
EA is a publicly traded company with shareholders to answer to. Although its partnership with the NFL is lucrative, there’s only so far the company can go to protect the league. In addition, EA’s employees are further outside the NFL’s influence than most of the other people who Kaepernick’s lawyers will likely have deposed. They’re much less likely to fall on their swords when their long-term future employment doesn’t hang in the balance. I don’t think the NFL can keep them all in line. Whatever information they might give up could open new lines of inquiry with the NFL.
The heat is turning up, and the NFL may be losing control of the situation. Elway was and still looks to be hardcore MAGA — just the sort of person who wouldn’t have thought all the way through the consequences of blackballing Kaepernick. I think he and others thought the NFL could swat Kaepernick away like a gnat. I don’t think Elway or his peers believed things would go this far, that there might possibly be real consequences, including federal felony charges if the NFL’s collusive behavior is found to violate antitrust laws. Elway’s odd press conference signals to me that he’s gotten wind that the chickens could be on their way home to roost.