The N.F.L. 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 who 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 N.F.L. 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 sustained neurological damage.
In many ways, the N.F.L. followed this same road map on Friday when it announced that it had reached another settlement, this time with the 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 N.F.L. has a reputation for using 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 to in Friday’s settlement because of a confidentiality agreement between the two sides.
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 J. Mitten, the director of the National Sports Law Institute at Marquette University. “They need to take into account social issues and public perception.”
The two cases, in some ways, are very 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 N.F.L. 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 P.R. nightmare for the league, and in some sense, it’s remarkable that Kaepernick proved himself to be a larger public figure than the N.F.L. with his Nike deal,” said Michael Leroy, who teaches sports law classes at the University of Illinois at Urbana-Champaign. “He outshined the league in a very significant way.”
The presence of Kaepernick, who rarely speaks in public, also hung over the Super Bowl this month. The basketball stars LeBron James and Kevin Durant were photographed wearing Kaepernick jerseys on Super Bowl weekend; the rapper Common tweeted a photograph of himself alongside the longtime activist Angela Davis, who was wearing a Kaepernick jersey; and the filmmaker Ava DuVernay said on Twitter that she was boycotting the Super Bowl in support of Kaepernick.
Days before the game, the N.F.L. canceled its traditional news conference for the performers of the halftime show after reports emerged that several prominent musicians, in gestures of support for Kaepernick, had turned down a chance to take part in the show.
The league also had to consider the arbitrator in Kaepernick’s case. Players file dozens of grievances every season, but most are resolved without becoming public. Kaepernick’s case, though, was being heard by Stephen Burbank, the arbitrator who ruled last August that Kaepernick’s lawyers had gathered enough evidence for the case to proceed.
A University of Pennsylvania law professor and an expert in contract law, Burbank has worked as an arbitrator for the league since 2002 and has a reputation for independence. He began his law career as a clerk for Warren Burger, then the chief justice of the United States.
One of his first tasks for Burger was to proofread the monumental United States v. Nixon ruling in 1974 in which President Nixon was ordered to turn over tape recordings and other materials in connection with the Watergate case. More than 40 years later, Burbank is wrestling with cases that may not be as historic but still carry plenty of significance.
“He told me once the main qualification of the job is not having any skin in the game,” said Stephen Walters, a friend of Burbank’s who clerked with him on the Supreme Court. “He isn’t an N.F.L. fan of any sort, but he is the perfect guy for the job.”
Kaepernick and the league could have been encouraged and worried by Burbank’s previous rulings as an arbitrator. Over the years, he has at times ruled for the players, as he did in a case involving miscategorized ticket revenue. He has also ruled for the league, as he did in a case involving the circumvention of the salary cap. And in a case involving revenue sharing, he ruled in part for the league and in part for the players.
As for Reid, who is now playing for the Carolina Panthers, he settled his collusion grievance with the N.F.L. under circumstances different from those involving Kaepernick.
Reid filed his case last May, while he was a free agent and was drawing limited interest despite having just finished his best season statistically. The Panthers ultimately signed Reid to a one-year, $1.39 million contract after the third week of the 2018 season, and this week they gave him a more lucrative, three-year extension.
Reid missed only three games before joining the Panthers, and Kaepernick has been out of the league for two seasons. In that sense, the potential monetary damages Reid could have won with a favorable ruling from the arbitrator were probably much less than Kaepernick could have won. In any case, he has settled, too, and the N.F.L. can try to move on.
“The N.F.L. has so many other issues around player health and well-being, they need to remove all the other static,” said Jodi Balsam, a professor at Brooklyn Law School who worked as a lawyer for the N.F.L.
It is worth recalling that during the recent Super Bowl in Atlanta, which took place less than two weeks before the league settled with Kaepernick and Reid, the N.F.L. invited civil rights leaders to take part in the pregame coin toss. In doing so, the league was embracing pioneers who helped bring social change to the country, and particularly to the South. But some wondered whether the N.F.L. was also trying to counter the effect of Kaepernick, whose principled protest continued to resonate.
Now the league has settled with Kaepernick and with Reid. Still, if the concussion case is any indicator, merely settling will not make the issues that Kaepernick raised simply go away. After all, nearly six years after the concussion settlement, the N.F.L. is still dogged by stories of former players in dire mental and physical health, and fears that football can cause brain damage have now reduced participation in youth football.
In the end, settlements, no matter what is at stake, can go only so far.
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