The former San Francisco quarterback Colin Kaepernick appears on a Nike advertisement pictured on top of a building in San Francisco on September 5, 2018.Alexandrian Sage / Reuters

On Monday afternoon, Colin Kaepernick tweeted his new Nike advertisement. The simple image—which over the coming hours had people celebrating Nike’s support for the embattled quarterback, questioning the motives of profit-minded corporations, and cutting the swooshes off their tube socks—features Kaepernick’s face filling the frame in grayscale, his eyes aimed at the lens. The words running along his cheekbones read, “Believe in something. Even if it means sacrificing everything.”

Whatever the ad does or doesn’t accomplish, in advancing the cause of social justice or hiking up Nike’s bottom line, it seems to take for granted the ever-increasing likelihood that Kaepernick’s NFL career is over (sacrificing, not risking, is the word chosen). It also endorses the belief that Kaepernick’s unemployment is a result of his kneeling during the national anthem to protest police brutality and racial inequality in the U.S. These opinions are hardly new, of course, 20 months after Kaepernick took his last snap; that the NFL’s official outfitter is willing to put them at the center of a campaign perhaps speaks to how widely they are held. But as the 2018 season begins Thursday night, against the still-conspicuous backdrop of his absence, the league continues to struggle with explaining why the most talked-about player in football isn’t on the field.

Last Thursday featured a somewhat quieter update to the Kaepernick saga, as the arbitrator Stephen B. Burbank ruled that the quarterback’s collusion case against the NFL, which the league had tried to have dismissed, would be allowed to proceed. The case alleges that team owners conspired to keep Kaepernick unemployed, following the expiration of his contract with the San Francisco 49ers after the 2016 season, to try to quell the controversy surrounding his protest. Burbank’s ruling means that a full hearing, potentially including questioning of the commissioner Roger Goodell and various owners and inquiries into their phone and email records, could occur as early as during this football season.

The odds seem stacked against Kaepernick winning the case, which would reimburse lost earnings but wouldn’t guarantee him a roster spot. Collusion in professional sports is notoriously difficult to prove, the last notable success coming when a group of Major League Baseball players, in the 1990s, won recompense from owners who had banded together to tamp down salaries. The mere continuation of the case, though, represents a blow to a league that appears to want nothing more than to wipe away all associations with Kaepernick. Every update will provide an occasion to remember the plain facts of the stalled-out career, and the plain facts, as I’ve written before, are damning.

For the unfamiliar, or the incredulous: As a second-year player and first-year starter in 2012, taking the reins midway through the season, Kaepernick led the San Francisco 49ers to the Super Bowl. The next year, he led them back to the NFC Championship Game. He has amassed, over his career, 72 touchdown passes against 30 interceptions. He possesses a combination of mobility and arm strength increasingly en vogue in the modern NFL. The Houston Texans and Green Bay Packers, among other teams, declined to bring him on even as a backup midway through last season when their starting quarterbacks suffered injuries. The Seattle Seahawks scheduled a workout with Kaepernick this off-season, then postponed it when he declined to say whether he’d continue kneeling during the anthem.

Regardless of whether or not this timeline eventually proves collusion by the standards laid out by the NFL’s bargaining agreement, it at least represents a breach of the league’s implicit contract with the public. As currently constituted, professional sports draw their power—and, in turn, their revenue—from presenting a near-absolute meritocracy. Fans tune in knowing that they’re watching the very best their preferred game has to offer. The NFL especially has gone to disturbing lengths to privilege football talent above all else, no matter how repugnant the offense in question. This is a league that in the past decade alone has welcomed back, among numerous others, Ben Roethlisberger after a pair of sexual-assault accusations, Michael Vick after a conviction for dogfighting, and Greg Hardy after a domestic-assault charge. Kaepernick’s absence continues to mark the rare occasion in which the NFL—by spoken or silent accord, to a punishable or non-punishable degree—has prioritized an off-the-field concern over an on-field one. Out of fear of an angry constituency and an angry president, it has failed at its basic purpose: to provide a qualified competitor the opportunity to use his skills.

This is a point so fundamental now as to be easily lost; an entire category of American conversation has been built atop the seemingly permanent condition of Kaepernick’s exile, as if it were a historical event and not a daily-renewed one. The NFL, the day after the Nike ad and without apparent irony, released a statement saying that “the social-justice issues that Colin and other professional athletes have raised deserve our attention and action.” LeBron James and Serena Williams announced their support for the campaign. The Players Coalition, a nonprofit organization headed by active NFL members, wrote an article calling for the media to stop asking “the same old questions” relating to the specifics of the protest and instead “focus on our efforts to create a better country for every citizen.” Kaepernick himself has gained a stature as an activist that he might not have were he still a player; a Nike TV spot set to air during Thursday night’s game shows him in an overcoat instead of a uniform.

The grace with which Kaepernick has adapted to his new role, though, has not absolved the NFL of justifying why he doesn’t still have his old one. As a new season of games gets underway, the questions and frustrations surrounding his estrangement from the sport remain. “Surely it’s an act of patriotism to forfeit your job to fight for others,” the Players Coalition writes of Kaepernick, and the corollary to the group’s statement is almost legible: Surely it’s an act of tyranny to take someone’s job for the same.

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