UPDATE 3: The Vikings will suspend Priefer for three games and donate to LGBT causes-

————–

UPDATE4: Welp

I’ve told you everything you need to know in the headline. But I’ll provide additional context, too. First, Kluwe’s tweets:

 

So, there you go. This very probably means that the Vikings have not agreed to make the report public, regardless of what happened in the talks Kluwe’s team had with the Vikings’ legal team. It also means that making the report (or a significant part of the report) is a critical sticking point in any settlement the Vikings could have with Kluwe and his lawyer, Clayton Halunen.

UPDATE: More tweets, this time from Chris Tomasson—who evidently CAN be a member of the media that contacts Kluwe regularly:

Wow. Quite a bit. This confirms that releasing the report is a significant part of any settlement, though the Vikings choosing not to agree to donating money means that they probably means that the Vikings weren’t willing to settle at all.

 

 

 

This is a tacit admission of some level of mistake by Mike Priefer, but the Kluwe camp don’t feel like that’s appropriate recompense for that. The “intentional infliction of emotional distress” is a new claim. More from Kluwe:

UPDATE2: Looks like we may not get the report.

Context and analysis below:

 

There are some additional updates I can provide. Because intent is very important to people, there are a few things I can add. The first is that I can confirm that Deadspin offered to pay Chris Kluwe for the Deadspin story published in January that started the whole thing and he turned down the pay. It ended up being a pretty significant amount, as it is still Deadspin’s most-viewed piece (and remember, they broke the Manti Te’o news).

The second is that any money from a settlement or a won lawsuit will go to organizations dedicated to promoting LGBT rights. This has been clarified before, but it’s still a fairly common sentiment that Kluwe stands to gain directly from winning a lawsuit (though he could stand to gain indirectly through speaking engagements and books afterwards, it would not quite fit the model he’s pursued so far).

In the past several days, I’ve talked to a number of people involved in the LGBT rights movement. The vast majority of them have positive opinions of Kluwe and feel that his abrasive behavior doesn’t diminish their efforts. For the most part, they’ve found him to be a far bigger positive than negative (they’ve worked in litigation, legislation and non-political efforts to advance LGBT rights)—people both peripherally aware of who he is and people who follow football closely generally agree that he’s done much more to advance a general movement than he has diminished it, through his behavior or tone or not.

This doesn’t, of course, speak to all or even most of any population that identifies with the movement—there’s no way I can speak for people whose identities are affected by the interrelated issues involved, especially as it wasn’t unanimous. But that’s what I know. Every one of the people I talked to did feel he was being genuine and several of them were more comforted learning that he was going to donate all settlement money to LGBT charities—that was a worry for one or two of them.

A few were fairly dismissive of intent, too. “So, what?” was a response I had heard from a few people involved in the movement when I asked them if they felt he would benefit from the attention, and most of them felt even then that he had been hurt more by his activism than helped, even those familiar with football and his salary situation.

A number of them went out of their way to tell me that there is not very much money in activism work.

Another common claim involved is that Kluwe needs to be gay in order to demonstrate damage or have a case in court. This is demonstrably untrue. Not only do these not affect his tortious interference claims, it does not diminish the religious discrimination claims Kluwe and Halunen alluded to in their press conference on Tuesday. Further, defamation does not require a protected class be involved.

The only one of the four suits we know of that could be affected by his sexual orientation would be a wrongful termination suit, but the wrongful termination suit is not a specific sexual orientation claim. The Minnesota Human Rights Act protects those in protected classes (race, gender, religion, sexual orientation, etc) but those who are engaging in behavior promoting human rights. Further, the lawsuit sounds like a retaliatory termination lawsuit, which covers all protected activity. You do not need to prove that you are a member of a protected class to pursue that suit.

There is another claim I’ve seen around, which is that Priefer engaged in “harassment,” not “discrimination.” Not only is discrimination broad enough to include all differential treatment (that would include harassment), harassment (especially due to being a member of a protected class or engaging in protected behavior) from an employer is specifically referred to as discrimination under federal law. Harassment generally refers to employee-to-employee behavior, not employee-to-employer behavior.

Kluwe’s claim of religious discrimination is not contingent upon receiving abuse in regards to his rights work, but rather specific, new allegations about behavior Mike Priefer engaged in that targeted Kluwe’s status as an agnostic. That means specific references to Kluwe’s religion (or lack of, which is still protected) were allegedly made by Mike Priefer.

The Vikings cannot shred this report, for both legal and public relations reasons. Of course.

On KFAN, Paul Allen and Ben Leber discussed the fact that Kluwe was unprofessional in the locker room with joke and crude behavior, as if that will somehow come back to bite him. It would not. Not only is Priefer in a position of power (the law is specifically designed with power imbalances in mind), but the accusation is not “unprofessional behavior,” but illegal behavior. Until Leber or anyone else can indicate that Kluwe did something illegal instead of unprofessional, he’s in no trouble.

And obviously, that would not vindicate the Vikings or Mike Priefer.

Leber also mentioned that in a conversation with Scott Fujita that this would intrude upon the expectation of privacy in interteam relations in the locker room. That may be so, but Fujita did not mind that back in February:

Those of us who have spent a lot of time in a locker room have been at some point guilty of saying or doing things that would have likely gotten us fired in a traditional workplace environment. And the same thing goes for coaches who, when it comes to inappropriate language, are often some of the worst offenders. As much as the NFL locker room may sometimes seem like a fraternity, it’s not. And while that environment is one of the things many of us actually miss when we leave the game, we all need to embrace the long overdue changes that are sure to come.

This is where men like commissioners Roger Goodell (NFL) and Adam Silver (NBA), and the NFLPA and NBAPA — all of whom have been on the right side of this conversation — have an opportunity to shine. And it really won’t take a whole lot, other than clearly and publicly defining what is appropriate and acceptable at the workplace, and what is not.

Imagine the message it would send if Goodell looked directly into the TV set, speaking intently to his players and to all who are watching, and clearly and emphatically articulated that the word “faggot” will no longer be acceptable language in the workplace. And what if players began to echo Goodell’s sentiment in the locker room, or out in the community, or when they visit schools and speak to children on their days off? That would be a whole lot more powerful than a revised pamphlet on workplace conduct. That would be a game-changer.

Chris Kluwe does not have to prove he would have been employed by another team in order to win his suit. Not only have hundreds of employees won suits against employers who would have cut them for performance-related reasons (while those plaintiffs were either fired from different jobs or not hired), but the NFL has a unique employment structure that makes that sort of defense specious at best.

First, if that were the case, Kluwe could simply, and compellingly, make the case that he is very likely not worse than the 32nd-best punter in the league and that discrimination and blacklisting are in play. Second, the labor market is incredibly static. A more fluid labor market would replace players at a rate commensurate with evaluation and talent, and the NFL would have to simply employ the best 1,888 players available. But given the nature of guaranteed contracts and closed roster limits, that claim is not relevant.

Third, and most important, if field in Minnesota, the legal standard of “significant factor” instead of “but for” shifts the burden of proof to the Vikings, who cannot use the argument that “they would have fired him anyway,” per Anderson v. Hunter, Keith, Marshall & Co. (Minn 1988). This could all change with new precedent or different information, but this is what I know based on the case law I’ve been given after talking to lawyers familiar with employment claims made under the MHRA.

The Vikings releasing a scrubbed report likely protects most of the organization.

All of this involves a lot of legal precedent and interrelated legal issues. It would be a mistake to dismiss either side as simply being stupid.

38 COMMENTS

  1. I’m guessing the Vikings continually file motions requiring a ton of lawyer hours then appeal everything they can at every level. Dude is gonna be broke or a free lawyer will go broke.

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    • UI would surmise that Kluwe’s suit won’t survive a Motion to Dismiss. And here’s why (note the date of the article):

      “Kluwe, of course, isn’t just drawing attention to himself and dedicating significant amounts of time to pursuits other than football. Wednesday, he admitted that he considers his advocacy for same-sex marriage more important than football. Kluwe: “The funny thing is if you look at that argument, the basic foundation of that argument, it’s that, ‘Why don’t you worry more about a children’s game than basic human rights?’ And yeah, I’m going to generally go with the basic human rights on that issue.”

      http://espn.go.com/blog/nfcnorth/post/_/id/48642/chris-kluwe-is-a-fortunate-nfl-employee

      The essence of his comment being that he understands that he might get cut for his off-the-field activities, but’s that’s fine with him because football is but “a children’s game” compared to more serious matters. But now, here he is alleging that having been cut from an NFL team was so emotionally distressing and “wrongful” that he deserves punitive damages. The fact that the Vikings have not admitted to having cut him for those reasons makes his claims all the more difficult.

      Keep in mind that the Vikings retained some high-priced labor law attorneys who took a look at everything and advised the Wilfs on how to go forward with this. As Arif said, “…the Vikings choosing not to agree to donating money means … that the Vikings weren’t willing to settle at all.” Which, of course, means their lawyers feel pretty confident going forward.

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  2. Anyone still doubt that the full report would vindicate Kluwe, or at least make Priefer and the Vikings look very bad?

    Vikings opted not to settle, over a difference of:
    — $1M (demanded) vs $100K (offered), which is going to charity anyway
    — suspending Priefer for 4+ games (demanded) vs 1-2 games (reportedly this is what the Vikings are planning)
    — releasing the full report vs released a team-edited summary

    Hard to believe that $900K means that much to a team recently valued at $1B whose owner supports marriage equality.

    Hard to believe that getting Priefer back on the sideline in week 3 instead of week 5 is worth going to court for.

    So that leaves the question of whether the public will get to see the full report. As reporter Mike Freeman put it:
    @mikefreemanNFL: That Vikings report must resemble an episode of Game of Thrones.

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  3. I can’t believe how badly the Vikings organization is handling this. Very disappointed. Part of growing up is developing a system of ethics. I will definitely become a former fan if they can’t figure this out.

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  4. Whether you like Kluwe or not, you have to admit his tweets are quite petulant, pugnacious and arrogant. “Apparently the Vikings want to do this the hard way” … “shit is about to get real.” When has anyone heard, say, Tom Brady or Drew Brees or AP talk like that? Does he really think that sort of immature, unprofessional, abrasive talk is going to come off good with a judge or jury? Just tweet that things didn’t work out and it’s unfortunate things have come to this. Don’t try to sound like some internet tough guy when a plaintiff’s credibility is the capstone to every lawsuit.

    Honestly, he acts so reflexively when he doesn’t get exactly what he wants that he seemingly doesn’t realize how his knee-jerk comments come off. It’s like in childhood when there was always that one snotty kid that would warn everyone that if they didn’t knock it off he’d tell his Mom. Coincidentally, that was always the kid that ended up getting his ass kicked.

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  5. They said on KFAN that the suspension talk on Priefer could be false. The Vikings haven’t reported anything. Only Kluwe is talking.

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    • Well now the Vikings have reported and it is official, so how many of you will continue with your disbelief in Priefer’s innocence. Not only did he lie but he lied to investigators twice until there was corroborating reports to the effect that he made those statements after all!

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  6. Isn’t nice we are a week away from camp and the only BIG Vikings news is Kluwe? Nice to have all draft picks singed and no big drama going on.

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  7. Has anyone not named Mike Priefer ever claimed that he didn’t do *anything* wrong? Everything I’ve read has been a discussion of whether or not Kluwe’s long list of claims is supported by the evidence (ie do Priefers alleged comments indicate that Kluwes claims about being blackballed are true?) No one knows what happened on that locker room, so we’re forced to look at the facts that are currently known (not just the convenient facts that Kluwe and his lawyer give out either.) Kluwe has given teams every reason not to hire him, so I’m particularly interested to see how the “blackball” aspect of the case plays out.

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  8. Wait, new update: Kluwe makes light of child-rape? It may not be illegal, but neither are anti-gay comments (unless they occur within specific contexts, as Kluwe alleges.) However, it’s completely f***** up. It looks like some of Kluwe’s dirty laundry is going to be aired along with the rest. Perhaps he really thinks its worth it. Well, either that or he’s calculated the cost and determined that he will still come out ahead. There may not be money in “activism” but there’s plenty of money in being a pundit/commentator/writer/etc. If Rush Limbaugh and Michael Moore can make a living on wide-eyed rants and unbridled savagery toward anyone who doesn’t fall into line with their way of thinking, Kluwe should be able to scrape together a meager existence during his retirement years. I realize he didn’t take money for the Deadspin article, but of course, a smart guy like Kluwe would understand how important it is that he NOT receive any immediate financial gain (otherwise his motives would be obviously selfish). Somehow I doubt that he’ll ride off into the sunset after his latest crusade is over.

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    • “Rush Limbaugh and Michael Moore”
      The perfect comparison! (If we could only get rid of both these ends of the spectrum, eh?)
      Kudos AUTHAN.

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  9. This all could’ve been avoided if Priefer and Kluwe would’ve used some common sense. Fine Priefer and suspend him 2-3 games. Have him go talk it out to some overpaid counselor.
    As for Kluwe…I agree with what XLevity said about him. I don’t care for your talk, grow up, go away. About doing what’s right? But it wasn’t what was right while you still had a job? You’re job was what was right!

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  10. This is ridiculous. Almost as bad as the NBA trying to take away/force Donald Sterling to sell his team. You may not agree with it, but it is freedom of speech and Kluwe was not discriminated against as he is not gay…unless he made a statement recently?

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  11. Hmm…my comment on a previous post still says its “awaiting moderation”. Maybe I can post it here? Just remember, Kluwe directed all of this vitriol at people who didn’t work for him, so it’s totally fine.

    **It’s not just Kluwe’s beliefs, but the way he promotes them that causes the most controversy. If Phil Robertson had said, “I hold a traditional view of marriage”, no one would have cared. It wouldn’t have made the GQ interview, and he certainly wouldn’t have been suspended. LIkewise, if Chris Kluwe had simply said “I believe that anyone who wants to get married should be able to do so, regardless of sexual orientation” it wouldn’t have angered many people. It’s his arrogant, dismissive, profanity laced rants against anyone who has the audacity to disagree with him that garner the most attention. Where should I start? There was the time he called Emmet Burns a “narcissistic fromunda stain”. Or how about the time he told Bob Sansevere that he hoped Skip Bayless would “fall down an elevator shaft onto a burning pile of rusted AIDS needles.” I’m sure his fans were giggling with delight, but my instincts tell me that Kluwe’s social retardation probably didn’t sit well with the Vikings or any other team. He acts like a 10 year old in a man’s body, an emotionally stunted child who seems incapable of understanding how people can possibly hold any opinion other than his own. Priefer is a “bigot” (he might be). Spielman and Frazier are “cowards.” Oh, then there was the time he called Peyton Manning and Drew Brees “douchebags” because he didn’t like the way they were handling the CBA negotiations. The list of childish and antagonistic behaviors goes on and on. The “lustful cockmonster” radio ad (classy.) How about the time he called the HOF voters “lazy”, “selfish”, “a$$hole-ish”, and “indolent, slothful, petulant, ignorant, and flat-out stupid” (all in one article) because they didn’t elect Ray Guy to the Hall of Fame as early as Kluwe wanted them to. It goes on and on and on and on. The Wilfs support gay marriage. The Vikings organization (while trying to refute the idea that they cut Kluwe over his ideology) agrees. However, neither the Wilf’s or the Vikings organization acts the way Chris Kluwe does when confronted with a different viewpoint. Why? Because they’re adults who understand that screaming and name calling lose their effectiveness around the time you learn to poop in a toilet instead of your pats. My analogy stands: Phil Robertson is a crude, insulting boor. So is Chris Kluwe. As a result, both men can reasonably expect to find their employment options limited, and neither is being deprived of his rights as a result of that fact. (Incidentally, they’re both millionaires so neither one actually has to work, but that’s beside the point.)

    Is it possible that Kluwe was blacklisted? Sure. But do you really think anyone who hasn’t been living under a rock for the last decade needs to be told that Chris Kluwe is an exhibitionist who lacks any sort of filter between his brain and his mouth, or that his antics tend to overshadow and distract from anything he (or the team) does on the field? Of course not.

    For reference:
    http://www.si.com/extra-mustard/2013/05/06/kicking-and-screaming-the-collected-rants-of-ex-vikings-punter-chris-kluwe
    http://deadspin.com/5960968/an-nfl-punter-to-the-hall-of-fame-selection-committee-ray-guy-was-great-at-his-job-youre-not
    http://www.sportsgrid.com/nfl/chris-kluwe-skip-bayless-aids-needles/
    http://www.huffingtonpost.com/chris-kluwe/an-open-letter-to-emmett-burns_b_1866216.html

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  12. For every week Priefer is suspended, Kluwe should be gagged. And Kluwe making light of the Sundusky thing is sickening.

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  13. Well now the Vikings have reported and it is official, so how many of you will persist with your belief in Priefer’s innocence? Not only did he lie initially, but he lied to investigators twice before being confronted with corroborating reports to the effect that he made those statements after all! What a nice Christian man claiming vehemently that it as the agnostic Chris Kluwe who was in fact lying. What a travesty, what a poor role model as a coach in our community.

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    • So what do you propose, Soapbox? Should the Vikings forfeit the upcoming season for this reason? And will you be equally indignant when Kluwe’s inappropriate remarks are inevitably exposed? That’s what’s surreal about this entire thing: Kluwe says inappropriate things on his Twitter account every day; and, yet, he flies off the handle when someone else does it. Unreal.

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      • Exactly. Time for Kluwe to apologize and then I’d say we’re all good….no sense wasting more of everybody’s time or money.
        Let’s play football!!!

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      • While some of his twitter comments are disgusting and reprehensible they are not the issue here at all. The issue is harassment of an employee by an employer in the workplace.

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  14. I don’t understand the Vikings handling of this entire situation. If they knew the truth from the get go go, but share a mind with Priefer then for shame for covering it up. Had they acknowledged misconduct and taken the moral high ground this would be ancient history. Easily they could have issued a statement 6 months ago and punished Priefer, but they didn’t. Does that suggest they share a bigoted mindset with Priefer?

    I love Teddy Bridgewater and the coaching staff assembled. I want to be excited about this team and not feeling ashamed of their coaches and management.

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    • I just don’t get it. If an employee said those things in the work place I would fire them, and announce proudly that my organization does not support such intolerance. But we didn’t do that, and why? It would have been nothing to issue a statement and let go a special team coach. The only way no action is taken is if management at a higher level sympathizes with Priefer, and that is sick.

      Again, I want to be excited about the Team and not thinking about this crap. I fault the Vikings management if for nothing else in their mishandling of the situation which continues today.

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  15. I don’t care what happened. I am also disappointed by how it’s been handled but by both sides, and find it unfortunate that someone with the ability to do something good like Chris Kluwe somehow always takes things to the wrong place. His voice is always negative and chauvinistic, he treats his own opinion as authority, and that is what won’t be fairly portrayed in any report.

    I don’t personally know Priefer whatsoever, his actions likely deserved termination, a result that would have severed this issue nicely. But based purely on scraps of circumstantial evidence and sound bites, he was provoked by a subordinate on a highly controversial issue. His mistake was not seeking mediation. Either way, two people arguing a subject which is uniquely black and white because of religious implications is a tough pill. People are allowed religious freedom, it’s a founding principle this nation was built on. A principle that opened the door for the modern freedom to be openly gay. Homosexuality is a reality, it does seem irrational to hide from. But if the LGBT community seeks tolerance and acceptance because they can’t or don’t want to change (it may sound silly but people don’t understand that this isn’t a choice, even for a staunch opposer of LGBT to change stance is not necessarily possible), advocates should find compassion for the other side of the coin and let the people who can’t or don’t want to change have their space, their opportunity to speak, and their freedom whether they are for or against. All of that may seem idealistic, but that is why I don’t consider Kluwe a positive influence on the issue. If he wins this it will simply spew negativity on a divisive issue. A lot of progress has been made, and provocation is only good for pushing the extremists over the edge.

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  16. You mean we’re allowed to comment on the Kluwe story here? Weird.
    Anyway… Paul Allen really has become difficult to listen to. Obviously he’s a complete homer and mouthpiece for the Vikes, but it’s just getting worse and worse. The other day he’s joking around saying he wonders if he should be scared about him hugging other guys. Really, is that supposed to be funny, or are you just that stupid to realize how ignorant you sound when you bring that up when talking about Kluwe’s situation?
    I’m glad this came out, and it doesn’t seem like it would have if Kluwe had not threatened lawsuit. Having said that, I wish it just ended here (unless there’s other things that are not being admitted publicly by the Vikes). It’s obvious Priefer said those things, everyone knows it, he will be suspended, and the Vikes will donate money to the cause.
    I think Kluwe was released because he wasn’t worth it, but there are definitely punters that aren’t any better and are just as old or older who play in the NFL… So while I think you can defend the Vikes releasing him, I just hope they didn’t say anything to any other teams that lead him being blackballed from the league.
    If it ended here, I think it would be a win-win, but Kluwe obviously doesn’t see it that way, so I don’t know if he knows more than what the Vikes are admitting, or if he is just vengeful at this point.
    (Again, thank you for allowing comments. You say anything remotely pro-Kluwe on DN and you’re labeled a troll and threatened with a “vacation”)

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  17. Not one commenter above has discussed the real issue here. There is mostly just the usual stuff about gay rights and trying to convert a group of people into a new “protected class” under constitutional analysis.

    Forget the Vikings, specifically here. If the NFL let this go through- any kind of settlement or backing off- they would be inviting every player cut in the future or recent past to file EEOC claims, and thus being in more employment litigation than football. That is a bigger risk than concussions or the Washington DC football team name. No professional sports team can afford to back off the standard “at will employee” personnel process- not even one millimeter. Otherwise, you have myriad claims by players who were cut due to coach’s necessarily subjective judgement regarding “team chemistry”. Pro sports can’t afford to go there, period. Therefore, every possible Kluwe misbehavior in all of hearsay history will be dredged up as a disincentive to play the Kluwe game.

    Had Priefer shown a history of derogatory statements and behavior, one could make sort of a case. The circumstances here (shut up, Krauser) were clearly different.

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    • In case everyone has forgotten, Kluwe initially demanded that Priefer be fired (and “ideally”, that he would never coach again at any level.) By lying, Priefer made things worse, but given that Kluwe was trying to ruin his life, I can understand it. The one confirmed statement that Priefer made was certainly homophobic and unprofessional, but the guy doesn’t deserve to be fired. Using that logic, Kluwe should have been cut for his child-rape joke alone! In this morning’s interview on KFAN, Kluwe himself backed off the demand that Priefer be fired, saying that a suspension and sensitivity training might be sufficient. Maybe if Kluwe had handled the situation in a more calm and rational manner, it wouldn’t have gone nuclear.

      Remember that so far, there has been absolutely no evidence that Kluwe made any attempt to properly address Priefer’s alleged behavior while he was with the team. Unless the Vikings lawyers are lying and misrepresenting the report that the investigators created, Kluwe only talked to Les Pico once, but asked him not to speak to anyone else about it (including Spielman and Frazier.) Kluwe himself admitted that he didn’t talk to H.R. or anyone else about the alleged harassment and general discrimination.

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