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

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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.