Let me see if I can bridge the disconnect.
OGL 1.1 was indisputably a draft. It was never published, never put into effect, never executed. Linda Codega even called it a draft. I also agree with you 1000% that contract offers are sent with both drafts of the contract (in this case, the term sheets) subject to negotiation and drafts of related material (in this case OGL 1.1) subject to change. Kyle Brink's statements on this matter also match up with my personal experience, and I do not believe he was being disingenuous.
There is also the timeline: the draft said that OGL 1.1 would take effect on January 13, 2023, and Linda Codega's internal sources stated that it was planned to be announced on January 4. No announcement ever came, and Codega's article exposing the leak draft was published on January 5. From that we can assume that the draft was still being changed at the time of the leak.
What people are taking issue with was the statement in the Smug Apology that, "Our plan was
always to solicit the input of our community before any update to the OGL; the drafts you’ve seen were attempting to do just that." The implication (and it's not particularly implicit) is that WotC was intending on getting wider community input before finalizing their update of the OGL. But if term sheets were sent with 1.1 attached, that indicates that the conditions of 1.1 were finalized
enough internally for Wizards to attempt to make alternative deals with certain 3PP based on them.
Thus, had enough 3PPs signed new deals with WotC, it is highly unlikely that WotC would have removed the royalties conditions based on public outcry--er, "input." If Kobold Press signs an individual license deal for 10% royalties, against an ostensible 25% royalty in the new OGL, what happens if WotC then goes, "Oh, the community doesn't like the royalties, so we'll remove them from the OGL"?
It suggests some level of duplicity. Either WotC misrepresented themselves to the 3PPs they sent term sheets to, or they were misrepresenting themselves to the public in the Smug Apology.
Personally, I think that they took their shot at getting 3PP buy-in under NDA prior to public release, but by the time of the leak had faced that they were not going to get it and were already making revisions. I do not think they did anything especially unethical by attempting that strategy. The Smug Apology's tone and representations were problematic, but that has already been repeatedly repudiated by Kyle Brink, so I'm satisfied as far as that goes.
Edit:
The whole point of this tread was to try and see if we had the actual language of the Term Sheet, i.e. the "contract."
Based on my reading of Codega's article covering the term sheets, as well as Kyle Brink's later statements, I do not believe there was "a contract." Each 3PP would have likely been sent a different version roughly similar but customized for each partner. The content of the term sheets
certainly fall under the NDA, and so it's unlikely we'll ever get a primary source. Nor could Codega directly quote from the term sheet without risking exposing the party that leaked it.
