The Minnesota Vikings are nearing the conclusion of their investigation of former punter Chris Kluwe’s allegations regarding homophobic comments by special teams coach Mike Priefer, and they should be done in a few weeks per attorney and former U.S. Department of Justice trial lawyer Chris Madel (per Ben Goessling of ESPN). Priefer was one of the few staff retained in the new coaching regime (along with six other coaches, like receivers coach George Stewart and offensive line coach/running game coordinator Jeff Davidson). Kluwe has indicated that if the investigation does not conclude by the anniversary of his release—May 6th—that he will pursue legal action against the Vikings.
The May 6th deadline is significant because the deadline by which Kluwe can file a complaint under the Minnesota Human Rights Act is one year, which is why it makes sense for him to file a suit before the investigation is complete (he cannot file a suit after the investigation, should it finish after May 6th).
The likelihood of the investigation finishing before the draft is low, and they will take their own time. Initially, Chris Madel expected the investigation to conclude at the end of March, which of course hasn’t happened.
**UPDATE**: Per Chris Tomasson of the Pioneer Press, the Vikings have agreed to extend the statute of limitations on any potential lawsuit, which means that Kluwe, who was under the impression he needed to file a lawsuit by the 6th (per Minnesota law), may wait until the conclusion of the investigation.
He also indicated that he would sue “obviously for wrongful termination” but I would rather take his lawyers, Clay Halunen’s, word from February 2nd on the wide range of suits that they would potentially pursue, which is broader than the scope of wrongful termination (more on that below).
Kluwe also said the lawsuit may end up being for “quite a bit” of money, and agreed when asked if it could be upwards of $30 million. He also said that he would donate every penny of damages to LGBT charities if he won.
**UPDATE2**: Chris Kluwe contacted me over twitter to say that yes, I should probably defer to his lawyer when discussing the specific terms of any potential lawsuit, and that the “wrongful termination” bit was just a “quick quote”—which is fair. I would also point out that Kluwe was also likely not inaccurate when characterizing what he would sue for, simply incomplete.
For those who may not remember, Kluwe initially publicized the allegations that Priefer said, with hostile intent that, “We should round up all the gays, send them to an island, and then nuke it until it glows,” on December 2nd in a Deadspin piece.
He further claimed that general manager Rick Spielman and then-head coach Leslie Frazier discouraged him from speaking out on social issues and had an unproductive meeting with team player development director Les Pico about Priefer’s comments shortly before being cut in May.
Priefer has vehemently denied Kluwe’s allegations, and kicker Blair Walsh—while not denying the allegations—spoke in favor of Priefer and defended his character shortly after Kluwe’s allegations were made public.
I am not a lawyer, but I think that any lawsuit that hinges on wrongful termination may end poorly, because they will require an interpretation of Kluwe’s 2012 performance. Chris Kluwe has been vocal and active in arguing that NFL punter averages are irrelevant in evaluating punter performance, a critical argument he uses in his Ray Guy Hall of Fame advocacy, yet argues that his punting average was good enough to retain employment.
For what it’s worth, nearly every special teams coach uses a play-by-play analysis similar to third-party evaluation website Pro Football Focus when evaluating special teams performance (important because PFF grades are often used in agent-team negotiations and a proxy to judge performance if Kluwe argues his grades were skewed). In PFF’s grades, he ranks 25th overall and had a 25th overall punting average (as counted by PFF which counts differently than the NFL, which ranks him 17th in punting average). As a punter due $1.45 million (against a rookie due $405,000), this may not fly.
Kluwe’s layer, Clay Halunen, argues that there are a number of other suits to pursue, including religious discrimination, a “sexual orientation claim,” a retaliation claim and others. The religious discrimination claim would rely on statements Priefer made about Kluwe’s atheism, which haven’t been made public like Priefer’s statements regarding gays and lesbians.
The claims regarding a protected class are extremely tricky, but generally speaking require (as far as I understand) that a member of a protected class initiate the suit or at least be the ones demonstrating harm. Should a member or former member of the Minnesota Vikings come out as not-straight (it is not a stretch that any orientation other than straight—not just gay—would feel threatened by Priefer’s comment) to support Kluwe’s lawsuit, this would go in a different direction.
It is largely tricky because this is one case the protected class is not immediately identifiable (unlike gender or race discrimination suits) and may be subject to (real or perceived) harm should they “out” themselves to be identifiable. Should Halunen effectively forward this argument (which is more compelling in casual conversations than legalese), Kluwe may have a case.
Any “hostile workplace” claims may fall under a similar purview, but reprisal may be a claim that Kluwe can most effectively pursue (based on my interpretation of law—again, I have not even taken a law school class, much less the bar). The Minnesota Human Rights Act outlines that one may be subject to protections not just by being members of a protected class, but protected against employers discriminating against those who “oppose discrimination” or “have friends from other protected classes.” It also protects employees who take part in “local Human Rights Commission Activity,” which Kluwe has not done.
Further, the Minnesota Human Rights Act does not protect against religious discrimination, but the broader term “creed,” which does not have to include God or Gods, but instead a broad set of strongly held beliefs.
Beyond that, the federal Equal Employment Opportunity Commission de facto processes claims regarding sexual orientation by broadly interpreting congressional mandates on religious discrimination in employment, though this may not hold up to challenges.
It’s a complex suit that involves claims aside from “wrongful termination,” but may hinge upon the reasons he was released. Nevertheless, if Halunen interprets the MNHRA to protect against all forms of workplace harassment, not just termination, then they will have a significant case against the Vikings and special teams coach Mike Priefer should Kluwe’s statements bear out with evidence.