NATIONAL FOOTBALL LEAGUE REPORT

Photo: SI.com

Drew Brees didn’t just know it was coming. He knew when it was coming, and how Sean Payton was going to do it.

After losing consecutive games to start the 2017 season, a Saints team with minimal expectations went on an absolute tear. And seven games into what would become an eight-game winning streak, Brees could feel his teammates’ confidence starting to boil over and the buzz around the team growing strong enough to draw national attention. Payton, as a result, was growing antsy—and that could only mean one thing.

“You win a few games in a row, you sense the team is feeling good about themselves, and letting some things slide maybe they shouldn’t,” Brees said, smirking, in a quiet moment after practice on Wednesday. “And so I’m going to walk into the facility, and I’m going to expect to see mousetraps.

“And the message is going to be don’t eat the cheese—‘Hey, the media and your family and all these people are telling you how great you are, don’t eat it, that’s a trap. We still have a lot to prove, a lot of things to work on, we’ve got a bull’s eye on our chest, this is one of those games.’”

Sure enough, the mousetraps—one of Payton’s motivational tactics—were in the Saints’ practice facility that week.

Going into his 13th year as the Saints quarterback, Brees is well beyond the old cliché of being able to finish Payton’s sentences. At this point, he can basically anticipate and begin them, if he wants to. And the same goes the other way for a coach who bought relatively low on a quarterback with a blown out throwing shoulder in March 2006, and has reaped incredible benefits since.

“[As] a first-time coach, … you get that three-year period to have success and make a difference, and [Brees has] been—shoot—it couldn’t have worked out better,” Payton told me. “To have a guy who you know who is not only going to play at his level but lead at his level, be here before anyone and leave after everyone …”

Payton shook his head, maybe realizing just how valuable it is to have his best player represent all he wants in his program.

“No doubt,” Payton continued. “And if your best aren’t that way, it becomes more challenging.”

It’s facilitated a few rebuilds and restarts for Payton and the Saints over the last 13 years, the latest of which has the two going forward into what feels like a new beginning in New Orleans, Brees’s age (40 years old in January) be damned. By  Albert Breer SI.com

Buffalo Bills quarterback AJ McCarron is getting a second opinion on his injured shoulder after initial tests came back “not totally conclusive,” head coach Sean McDermott said Sunday, according to ESPN’s Mike Rodak.

McCarron left Buffalo’s preseason game Thursday versus the Cleveland Browns with a reported hairline fracture in his collarbone.

The 27-year-old signed a two-year contract with the Bills in free agency and is competing with Nathan Peterman and first-round rookie Josh Allen for the starting job.

McCarron spent the first four years of his NFL career with the Cincinnati Bengals, serving as a backup for Andy Dalton.

In other Bills news, McDermott said veteran defensive tackle Kyle Williams is week to week with a knee injury, but won’t require a procedure to fix whatever’s ailing him. By 

Photo: Larry Brown Sports

Saquon Barkley has been the most popular rookie in the NFL leading up to the 2018 season, and the New York Giants running back wants to make sure he is well represented during his professional career.

Barkley signed with Jay Z’s Roc Nation Sports when he decided to enter the NFL Draft, and he has been represented by Kim Miale. According to ESPN’s Darren Rovell, the former Penn State star has decided to sign with Creative Artists Agency (CAA) for marketing and endorsements.

Miale already negotiated a four-year, $31.2 million rookie contract on Barkley’s behalf, so it makes sense that he is not leaving Roc Nation altogether. It is, however, a bit unusual that he will be represented by two of the most powerful agencies in sports and entertainment.

The expectations surrounding Barkley could not be higher entering his first NFL season, and he was recently hard on himself over his preseason injury. He’s well positioned to enjoy incredible success both on and off the field. By  Steve DelVecchio Larry Brown Sports

Photo: Clutch Points

Cleveland Browns wide receiver Jarvis Landry is no longer in the AFC East, but he still drew the ire of numerous Buffalo Bills for what they believe to be a dirty block against rookie cornerback Taron Johnson during Friday’s preseason game.

Landry, acquired by the Browns in a March trade with the Miami Dolphins, crushed Johnson with a devastating block on a four-yard touchdown run from Carlos Hyde.

“Landry, he’s a good receiver, physical guy, but some of those plays that he has – Aaron Williams, Taron, I’m pretty sure he has other ones – I just think they’re dirty,” Bills linebacker Lorenzo Alexander said Sunday to ESPN’s Mike Rodak. “Coming from the outside of the box in, the league needs to do a better job of calling penalties on those types of plays. Obviously defenders get called all the time on stuff that is probably less egregious than that. If we’re going to protect our football players, we need to protect everybody, not just offensive guys.”

It wasn’t the first time Landry was the subject of controversy against the Bills. During a 2016 game, Landry crushed Bills safety Aaron Williams with an unsuspecting block. Williams suffered a season-ending neck injury and did not play in the NFL again.

Bills safety Micah Hyde also blasted Landry for his hit on Johnson.

“That’s ridiculous,” Hyde said Sunday. “Because if a defensive player does that to an offensive player, he’s getting ejected. I don’t care if he lowered his shoulder or not. He’s coming all the way from No. 1, past the numbers, and flying down onto the hashes and cleaning up somebody. That’s the same as that play that Aaron Williams got hit on a couple years back and basically ruined his career.

“To me, that’s B.S. You can’t do that. All you have to do is get into position, screen him off. He doesn’t have to come in and try to kill anybody.” By  The Score

PHOTO: Monday, Sept. 12, 2016, file photo, San Francisco 49ers safety Eric Reid (35) and quarterback Colin Kaepernick (7) kneel during the national anthem before an NFL football game against the Los Angeles Rams in Santa Clara, Calif. The dozen NFL players who have joined Kaepernick’s protest of social injustices by kneeling or raising a fist during the national anthem have faced vitriolic, sometimes racist reactions on social media and at least one has lost endorsements. None are deterred by the backlash. (AP Photo/Marcio Jose Sanchez, File) Marcio Jose Sanchez AP

During a press conference on Thursday, Denver Broncos general manager John Elway was asked if his team—which is exploring the possibility of signing a veteran free-agent quarterback—regards free-agent quarterback Colin Kaepernick as a “viable option.” Keep in mind, the Broncos’ quarterback situation is in flux. Paxton Lynch, the team’s first-round pick in 2016, was recently demoted to the No. 3 on the depth chart behind Case Keenum and rookie Chad Kelly.

Elway responded to the question as follows:

“You know what, and I said this a while ago: Colin had his chance to be here. We offered him a contract. He didn’t take it. And as I said at my deposition—and I don’t know if I’ll be legally able to say this—but he had his chance to be here. He passed it.” 

Elway’s reference to “my deposition” concerns when he gave sworn testimony in May. With Kaepernick in attendance at Elway’s deposition, the 58-year-old GM responded to questions posed by Kaepernick’s attorneys. Members of Kaepernick’s legal team, which includes Los Angeles attorneys Mark Geragos and Ben Meiselas, have deposed more than two dozen NFL owners and team executives as part of the grievance process. Kaepernick’s attorneys believe that some combination of NFL officials, NFL owners and team executives have conspired to keep Kaepernick out of the NFL, and that they are animated by fear of President Donald Trump—one of Kaepernick’s sharpest critics.

As explained below, Elway’s comments do not undermine Kaepernick’s grievance. Just the opposite, actually, they could prove problematic for both him and the NFL.

Photo: SI.com

KAEPERNICK BEING OFFERED A CONTRACT IN 2016 DOESN’T DISPROVE COLLUSION IN 2017

For two important reasons, the Broncos offering Kaepernick a contract in 2016 in no way negates the possibility that Kaepernick later experienced collusion.

First, Elway’s reference to an offer concerns a situation in April 2016—long before the relevant time period for Kaepernick’s grievance. Kaepernick was given the opportunity to facilitate a trade from the 49ers to the Broncos. A precondition to the trade was Kaepernick agreeing to sign a new contract. The new contract, however, would have reduced the guaranteed portion of Kaepernick’s contract from $11.9 million to $7 million.

Unsurprisingly, Kaepernick refused to accept a reduction of approximately 42% in guaranteed money. He instead remained with the 49ers through the 2016 season, during which time Kaepernick began to kneel while the national anthem was played. He opted out of his contract with the 49ers on March 3, 2017. It’s now 531 days later. The 30-year-old Kaepernick, who led the 49ers to a division championship in 2012 and a Super Bowl appearance in 2013, remains unsigned and unwanted.

Whether Kaepernick’s NFL career would have been better off had he joined the Broncos in April 2016 is an interesting football question, but it is immaterial to his grievance. Under Article 17 of the collective bargaining agreement between the NFL and NFLPA, collusion concerns actions that occurred, or were reasonably discoverable, during the preceding 90 days. Kaepernick filed his grievance on October 15, 2017. This means the alleged collusion took place, or could have been discovered, at point(s) between mid-July and mid-October 2017—in other words, long after Kaepernick declined to take a massive pay cut to join the Broncos.

Second, even if Kaepernick had rejected an opportunity to join the Broncos within 90 days of his collusion filing, that decision wouldn’t have disproved collusion. A finding of collusion doesn’t require a league-wide conspiracy. It only takes two or more teams, or the league and at least one team, conspiring to deny Kaepernick of the collectively-bargained right to sign with a team. There are 32 NFL teams. Taking one team out of the equation doesn’t change much. There remain numerous combinations of 31 teams that could lead to two or more teams (or one team and the league itself) conspiring against a player.

ELWAY’S COMMENTS COULD PROVE PROBLEMATIC FOR THE NFL BOTH PROCEDURALLY AND SUBSTANTIVELY

In his statement, Elway wondered if he was “legally able” to reveal his deposition testimony. Elway was right to wonder. In hindsight, he should have refrained from the topic altogether.

First, those who partake in Kaepernick’s grievance do so under a protective order. The order forbids disclosure of any sensitive information contemplated in the grievance. The order governs all players, team executives, team owners, league officials and anyone else who participates in the grievance. The grievance’s arbitrator, University of Pennsylvania law professor Stephen Burbank, issued the order—possibly at the behest of the NFL, which (like other businesses) normally prefers confidentiality in arbitration. Elway openly discussing his testimony would appear to violate the protective order. Such disclosure is also at odds with the CBA, which requires confidentiality of collusion grievances.

Burbank could conceivably sanction Elway and the NFL for the disclosure; separately, the NFL could consider fining Elway. Regardless, this is an inopportune time for the NFL to annoy Burbank. He is currently deciding whether to grant summary judgment in favor of the NFL. Under Section 7 of Article 17, Burbank is considering whether the evidence Kaepernick has offered thus far is sufficient enough to raise a genuine issue of material fact. This consideration occurs after the two sides completed the discovery process, which involves witness testimony and release of physical and electronic evidence. In order to prevail in his grievance, Kaepernick must show, by a clear preponderance of the evidence, that he experienced collusion. Such evidence could include testimony, texts, emails and other materials and correspondences.

If Burbank finds that Kaepernick has already shown enough evidence to defeat a motion for summary judgment, he would deny summary judgment. Such a move would concern NFL officials and could lead them to worry that Burbank is inclined to rule in favor of Kaepernick. Such anxiety might propel the NFL to seek a financial settlement with Kaepernick.

It is also worth noting that Kaepernick’s attorneys only targeted certain team owners and executives. It stands to reason that they pursued Elway in hopes that he might offer the very comments he spoke on Thursday. With that in mind, Burbank almost certainly wants to know the answer to the following question: If Elway wanted to sign Kaepernick in April 2016—before the kneeling began—why would he not want to sign Kaepernick in 2017 or 2018?

If the answer is Elway felt that Kaepernick’s play in the 2016 season had revealed a regression between the player he sought in April 2016 and the one that became available in March 2017, Elway would seem to possess a meritorious reason. One problem with that explanation, though, is that Kaepernick played better in 2016, when he threw for 16 touchdowns and only four interceptions, than he did in 2015. In fact, his QB rating in 2016 was 90.7 whereas it was 78.5 in 2015. Also, if Kaepernick was worth $7 million to the Broncos in April 2016, was he not worth engaging at all when he became available in March 2017 and remained available thereafter?

Alternatively, if the answer is Elway was annoyed that Kaepernick turned down an opportunity in 2016 and then held a grudge against Kaepernick, Elway would have acted against his own self-interest: he wouldn’t have signed a player he otherwise wanted merely because the player had previously rejected him. Although this explanation is plausible, it runs counter to how general managers normally operate: they want to win and will do everything within the rules to win. There have been plenty of general managers who sign players after those players previously said “no” or had left the team. To that point, Elway didn’t hold a grudge in signing Brock Osweiler in 2017, two years after Osweiler departed the Broncos to sign with the Houston Texans.

As yet another possible answer, if Elway and the Broncos didn’t sign Kaepernick in 2017 because of the controversy over kneeling, Elway would need to explain how he reached that conclusion. If the team came to that conclusion on its own—and without any consultation with other teams or league officials—the team would not have colluded. It might not have been a wise decision in terms of football and winning games, but it would have been okay in terms of the rules: a team, acting independently, could decide it doesn’t want Kaepernick because of the anthem controversy.

But that explanation would beg another question: why would a team worry about the impact of signing a player who is connected to the anthem controversy? The answer could lead to testimony that the team’s worry was shared by other teams. To that end, if there were consultations between the Broncos and other teams about not signing Kaepernick, then Kaepernick’s theory would be greatly advanced. By Michael McCann who is an SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.

 

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