Chris Kluwe has been the centerpiece of a lot of controversy recently (and also not very recently), this time in regards to a lawsuit he may bring forth against the Vikings for quite a few different, but related claims.
At any rate, he was a little more specific on twitter today about the reason he doesn’t have a job punting in the NFL at the moment.
@PAOnTheMic Chicago was a call of the wild, Buffalo was an equal competition that Moorman got because he punted there, it cost me Cincy.
— Chris Kluwe (@ChrisWarcraft) July 17, 2014
He also later tweeted that the Oakland job was a situation where he was evaluated equally to Marquette King, but lost out because of King’s age. The fact that Oakland was the only team to keep two punters on the roster after final cutdowns is actually pretty good evidence of that Raiders argument—they claimed they were willing to listen to trade offers for either punter.
At any rate, the specificity of the Cincinnati claim is intriguing. After Kevin Huber’s crazy jaw injury, Cincinnati tried out five punters. Those punters were T.J. Conley, Drew Butler, Robert Malone, Chris Kluwe and Shawn Powell. Looking at their specific PFF ranks and some regressed punter stats I’ve been working on (don’t ask—they’re dependent on return ratio, touchback-to-inside20 ratio and net yards), Kluwe may have a case that was the better punter of the five in the past two years.
He is the highest-ranking in both categories of the five, and also has 149 punts. The others have had between 65 and 91. The difference is that he was a starting punter for 32 games, and none of them had started two full seasons by that time (Drew Butler entered the league in 2012, so he doesn’t count though he probably was not a frontrunner). In terms of raw punting average, only Robert Malone beats out Kluwe in those two years (or in 2012 alone).
Naturally that’s irrelevant because Kluwe’s claim would have to be dependent on the specific tryouts that they have—information we don’t have that he and presumably the Bengals do. If Kluwe was significantly better than Powell (who got the job and performed terribly) in tryouts, then the Bengals would need a compelling reason to choose Powell over Kluwe. It’s also interesting that the Bengals chose to sign Zoltan Mesko after cutting Powell without trying out Mesko (who had been cut from the Steelers on October 29th, a month and a half before the tryouts in Cincinnati), but it is difficult to speak on the internal affairs of the Bengals coaching staff.
The most important thing about this is that it may shed light on Kluwe’s claim for tortious interference in contractual relations. A short summary of this legal standard from a layperson (me) and half a conversation with a bar-certified lawyer I had: tortious interference is when a third party interferes with a contract agreed upon by two other parties.
Because “blacklisting” is not necessarily a crime as spelled out by a lot of legal codes, tortious interference claims are often used to combat blacklisting, which is generally a violation of antitrust claims but can be pursued under other protections under employment law.
This will also be dependent on venue. Blacklisting is specifically illegal in Minnesota, and Kluwe may be able to pursue a claim under the law 179.12 (3) and/or (6)—which refers to the concept and term blacklisting. Federally, blacklisting is rarely referred to as that, which is why, I imagine, Halunen used that term and also why choice of venue changes the nature of legal argumentation (once more).
Kluwe probably does not have to show proof of his claim regarding the Bengals for a few reasons. The first is that he only needs to prove that the Bengals took into consideration his agnosticism at all. This could include the Vikings mentioning it if the Bengals contacted them, asking him the question at all (by itself, illegal) or outright denying Kluwe a job (curiously after inviting him to try out at all).
The second reason is that if there’s any conversation that Kluwe had with any member of the Vikings staff that fell along the lines of “you know this means that you won’t get a job in the NFL, right?” that would be grounds for him to pursue a blacklisting claim under a blacklisting law or, more likely, a tortious interference claim (which is broader than the blacklisting claim and would more likely encompass blacklisting that does not involve a literal list). If any member of the Bengals staff indicated to Kluwe that the trouble he had with the Vikings bore weight, he could use that as evidence of blacklisting (depending on the nature of the conversation).
This is consistent with case law that indicates that Kluwe doesn’t have to prove he would have a job but for his activism or religion.
Kluwe is saying this with confidence and certainty, which at least implies he has some level of proof. If he does not, then it would be interesting to see what evidence that Kluwe and Halunen have to the effect of tortious interference. Halunen’s no moron, he has a strong reputation in the legal community from the lawyers I’ve talked to, and has been involved in a lot of class-action lawsuits and employment claims in Minnesota, including some of the largest decisions the state has ever handed out. He continues to be voted into lists of the top attorneys in the state by Minneapolis-St. Paul magazine and has been involved in claims regarding the Minnesota Human Rights Act before.
He knows how difficult it is to seek damages, too. In a story published in the Minnesota Lawyer on August 27th of 2010, he was quoted:
Minnesota law does not allow a party to seek punitive damages at the commencement of the litigation. Instead, only after filing the suit can the plaintiff move to amend the pleadings to claim punitive damages. The motion is frequently brought at the conclusion of discovery.
Courts are to consider the plaintiff’s evidence in support of the motion without considering the defendant’s evidence. If the plaintiff makes a prima facie showing that the acts of the defendant show deliberate disregard for the rights or safety of others, the judge shall grant permission to amend the pleadings to claim punitive damages.
Not all states require this two-pronged approach.
“[Our Legislature] did it to force you to go before the court and show your cards,” said Leventhal.
On paper, the legal hurdle for succeeding on a motion to amend a complaint to add a punitive damages claim may not look too high, but attorneys say that in actuality, it’s very difficult.
Minneapolis plaintiffs’ attorney Clayton Halunen said that most practitioners, especially in employment-related cases, routinely don’t seek punitive damages.
“The standard is so high that rarely ever does the court even allow you to amend your complaint,” he said. “It’s one of those vehicles that is there, it’s sitting on the books and looks like it’d be effective for punishment, but judges just don’t want to allow for the amendment. ”
In many other states, it’s routine to at least allow the claim to go to the jury, said Halunen. “But to get through that hurdle [in Minnesota] is extremely rare. “
I know many of you have said you’re sick of Chris Kluwe stories. They also happen to be the most well-read stories here at VT. I know that’s a Florio-ish defense of clickbait, but I’m also genuinely interested, so I’ll keep writing about it.