The NFL Is Making Colin Kaepernick’s Collusion Case for Him

As weeks pass and league-wide quarterback play worsens, the athlete-turned-activist’s continued absence on Sundays is becoming impossible to rationalize.

On October 15, Colin Kaepernick filed a grievance against the National Football League. It alleged that team owners had colluded to keep him out of uniform, not because of his athletic performance, but because of his decision to protest acts of police brutality and racial injustice by kneeling during the national anthem. The move gave official procedure to a politically infused conflict that had been contested, to that point, through the media, and that had long since taken its place in the broader culture war.

Mark Geragos, the lawyer representing Kaepernick, wrote at the time, “If the NFL (as well as all professional sports leagues) is to remain a meritocracy, then principled and peaceful political protests—which the owners themselves made great theater imitating weeks ago—should not be punished and athletes should not be denied employment based on partisan political provocation by the executive branch of our government.” His statement closed with a direct request: “Colin Kaepernick’s goal has always been, and remains, to simply be treated fairly by the league he performed at the highest level for and to return to the football playing field.”

For the length of this season, the absence of Kaepernick—inexplicable by one set of standards, all too explicable by another—has remained the dominant and unavoidable story. In the weeks since his collusion claim, though, that absence has become even more conspicuous. As injuries to some quarterbacks and subpar play from others lead to a frantic reshuffling of rosters, Kaepernick remains out of work, and the oft-repeated explanations from coaches and executives that he’s simply unqualified no longer hold up to scrutiny. Promoted backups struggle, third-stringers inspire little hope, and a recent star who came within five yards of winning a Super Bowl awaits a call. With each passing Sunday, the NFL itself builds Kaepernick’s case.

Kaepernick has become so much more than a football player that it’s easy to forget what he has done on the field. At his best, during the San Francisco 49ers’ 2012 Super Bowl season and the follow-up, in which the team reached the NFC championship game, he combined a strong arm, quick legs, and the decision-making needed to know when to use which. He could thread the ball between a cornerback and safety; he could tuck it and tear down the middle for 20 yards. Even during his subsequent down years—surrounded by lesser talent and an inexperienced coaching staff—Kaepernick could frequently give opponents headaches. Inverting the standard rhythms of the game, he forced defenses to learn new habits on a weekly basis. Last season, his worst by far as a professional, he still threw 16 touchdowns against only four interceptions.

After Aaron Rodgers broke his collarbone on the same day Kaepernick filed his grievance, though, the Green Bay Packers head coach Mike McCarthy bristled at a question about whether he would consider bringing in the available quarterback: “I got three years invested in [back-up quarterback] Brett Hundley, two years invested in [third-stringer] Joe Callahan, the quarterback room is exactly where it needs to be.” Two weeks later, reports surfaced that the Packers were poised to pursue Brian Hoyer, then a backup with the 49ers, should he be released.

When the Houston Texans rookie Deshaun Watson tore his ACL in practice earlier this month, the pattern repeated. Tom Savage, the backup, was promoted to starter, and—despite consecutive losses, dismal passer ratings, and a personal admission that he “played like crap”—his job is secure for now. Meanwhile, the Texans’ new third-stringer hasn’t thrown an NFL pass since 2011.

The rationale offered by those who pass on Kaepernick has remained the same since the summer: He would have too much to learn, in too little time. “Certainly he’s good enough to be a backup,” an unnamed executive told Sports Illustrated in August. “But we have a good No. 2, a guy that fits our system that we have familiarity with.” The Texans coach Bill O’Brien, when asked about Kaepernick after Watson’s injury, suggested that his time away might be somehow self-perpetuating. “Colin Kaepernick is a good football player,” O’Brien said, before adding in a tone of concern that he “hasn’t played football in a while.”

While Kaepernick’s potential employers seem curiously attuned to perceived flaws, many of his former colleagues see wasted value. “I think he should be on a roster right now,” Rodgers said before the season. “I think because of his protests, he’s not.” Tom Brady, possibly the NFL’s most distinguished dispenser of evasive cliché, said in September, “He accomplished a lot in the pros, as a player, and he’s certainly qualified.” And the Seattle cornerback Richard Sherman has vouched for Kaepernick with specifics. “Ryan Fitzpatrick, Ryan Mallett, or whoever is playing for the Jets right now—whoever is starting for the Jets is terrible—have jobs,” he said in August. “You’re telling me fans would rather you lose and put a worse player out there because a guy took a stand?”

The state of quarterbacking has only grown more dire since Sherman’s comments, the injuries to Watson and Rodgers accounting for just a portion of the league’s need at its premium position. The Indianapolis Colts’ Andrew Luck didn’t play in a game this season and was recently shut down for the year with a lingering shoulder injury; his team sits at 3–7. The Denver Broncos, with a top-line defense yet only three wins in nine games, have produced 13 interceptions against just 11 touchdowns from their quarterbacks. The standard knock on Kaepernick—that he would disrupt a team’s offensive schemes—invites an obvious response: Some teams could use disrupting. (Kaepernick’s Super Bowl run five years ago began when he replaced the injured San Francisco starter Alex Smith midseason.)

Away from the field, the collusion investigation moves ahead. Owners have been asked to turn over cell phones; league officials await word on depositions. In years past, the intrinsic popularity of football itself has shielded the NFL from one controversy after another, but that distraction has crumbled away. When the most important players on the field struggle, it is impossible not to think of the most obvious replacement. The games are not escapes from controversy; they’re reminders—or, more to the point, evidence.

Whenever the question—How does Colin Kaepernick not have a job?—starts to feel worn, some fresh bit of on-field incompetence gives it a jolt of immediacy. (Sunday night, the Denver quarterback Brock Osweiler came closer to concussing a sideline worker than to putting a scare into the Patriots.) Team owners and general managers who refuse to give Kaepernick a shot do so knowing full well that it harms their ability to compete; they would rather lose without him than win with him. All season long, his absence has been suspicious. Now, it is damning.