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Elway’s Kaepernick comments could be problematic for NFL

Mike Florio

As the NFL tries to show that the collective shunning of Colin Kaepernick didn’t result from collusion, one of the teams at the heart of the before/after anthem protest attitude toward Kaepernick may have made things a bit more difficult.

Broncos G.M. John Elway, who recently opened the door to bringing in a backup quarterback from outside the organization, attempted on Thursday to explain his lingering lack of interest in Kaepernick, a player for whom the Broncos tried to trade in 2016.

Here’s Elway’s full quote, from Ian Rapoport of NFL Media: “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.”

There are two potential problems with this response. One logical, one legal (as Elway seemed to realize while he was uttering the words).

First, here’s what happened in March 2016. The Broncos needed a starting quarterback, after Peyton Manning retired and Brock Osweiler (more on him in a second) left via free agency. Kaepernick had a contract that paid him $12 million for the coming season, and it was due to become fully guaranteed on April 1 of that year. So if the Broncos traded for Kaepernick, they would have been saddled with his $12 million salary.

Elway wanted to pay less. Kaepernick didn’t want to take less, and he had no reason to take less. He had undergone a trio of offseason surgical procedures, he wouldn’t have passed a physical before April 1, so he was getting $12 million for 2016, no matter what. Thus, while Elway clearly wanted to trade for Kaepernick, Elway didn’t want to pay Kaepernick as much as Kaepernick could have gotten from the 49ers.

It’s no different than what Osweiler did that same month. Elway wanted to keep Osweiler, Elway offered Osweiler a contract, and Osweiler declined to accept the contract (signing instead with the Texans) because Osweiler wanted more.

And what happened a year later, after Osweiler was unloaded by the Texans to the Browns and later cut by Cleveland? When Elway needed a backup quarterback, did he say, “Brock had his chance here. We offered him a contract. He didn’t take it. So . . . he’s had his chance to be here. He passed it”?

Nope. Elway brought Osweiler back.

Second, when Elway said that he doesn’t know “if I’ll be legally able to say this,” Elway wasn’t talking about any potential illegality arising from the substance of his comments but from the fact that he was commenting on what he said during his sworn deposition in Kaepernick’s collusion case. As lawyer Mark Geragos explained it last month, an order issued by arbitrator Stephen Burbank precludes any public discussion of the collusion case. And it’s clear that Geragos strongly disagrees with the gag order, which means that the NFL wanted the gag order.

So, by making direct reference to his deposition testimony in the Kaepernick collusion case while commenting publicly about the lack of interest in Kaepernick, Elway arguably has violated the terms of the gag order that the NFL wanted to be imposed.

It’s unclear what the consequences could be; it’s not as if Burbank will, or even could, throw Elway in jail for contempt of court or fine him for violating the gag order. As a practical matter, Burbank could take a dimmer view of the NFL’s current effort to knock out the Kaepernick case via the pending motion for summary judgment, and Burbank eventually could look more skeptically at the NFL’s overall defense if there’s a full-blown collusion hearing.

Regardless, Elway’s remarks will do nothing to make the NFL’s case stronger. They easily could make the league’s position weaker.