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.
View Comments
Whatever you think of his personality or politics, whatever might have been the best way to handle the situation at the time or even now, whatever his chances of actually winning a lawsuit, it seems more and more obvious that Kluwe's not out of his depth, and he's not struggling to make his case.
I expect that pattern to continue.
"...he's not struggling to make his case."
What case would that be? He's made at least a half dozen allegations. Which one are you specifically impressed with considering the investigative report has not hitherto been released?
Could it be that Cincinnati, somewhere in the coaching staff or front office, they just said, "we have enough headaches already, and don't need to add a likely new one"? That question based not on some blacklist, but from observing Kluwe's highly visible social activism activities makes sense to me. The fact that Oakland kept him for a bit, suggests that there was no league-wide blacklist, and we know the league has given chances to players with adverse histories, i.e. troublemakers, but any particular coach, manager, front office decision maker can make a judgement not to go with an individual due to a variety of reasons including team chemistry. We don't know, but this may have been the case in Cincinnati and elsewhere. Bad chemistry between workers or between your customer base, no matter how skilled the employee can be detrimental to goals of the organization. If that is the case, not selecting that employee is the best course of action, and has nothing to do with a blacklist. Kluwe's actions may have created this perception and that is based solely on him. Just because an individual chooses to support a cause generally doesn't matter, but if they do it in a way that conflicts with workplace norms and overall cohesiveness, it may, justified or not. I believe this to be Kluwe's downfall.
Workplace culture & norms and keeping Priefer. Vikings organization in real trouble if Priefer who hates to the point where he feels free to subject his employees at work to this hatred of gay people. Then goes after a guy who on his own time speaks out against intolerance and Vikings protect that...Legally that workplace better start hiding and stonewalling. I don't think Vikings want intolerance and hate on their corporate shield. Bad culture.
Kluwe has often been an opportunist. Now, many people are (me included) at times in ones life. He, however falls on the side of those slimy characters who ride on the backs of others to achieve what is best for themselves. If Priefer (or others, players and coaches alike) said things that truly disgusted him, (And we all know in the NFL or other professional sports there is a culture of crude, rude and juvenile behavior and speak--from the N word to insults of one's mother...etc ) his waiting to see his career string run out before filing an action, confronting the Vikings and going public makes him a very sad example of the worst kind of opportunist. Knowing the truth about this matter will be fine but knowing the values of this man and what he stands for we already know. It's all about "me"!
He kicked all this off by referring to Spielman and Frazier in the Deadspin article as "cowards". But yet, he admitted that the reason he didn't make his claims earlier is because of his perception that if he did no NFL team would sign him. So, in other words, he refrained from "doing the right thing" until he believed it wouldn't cost him anything. Is there a more prolific example of cowardice than that? Honestly, does Kluwe not see his own hypocrisy?
Employment law is not my area (in fact, I would never have gone through law school had I had to go anywhere near either plaintiff practice of any kind or employment law), so I am not familiar with the evidence threshold.
But it is pretty hard to claim a blacklist when the age and money issues are well-known, but a guy still gets tryout 5 opportunities- and every one declines after having him actually punt. The burden of proof shifts from prima facie to something more like that for defamation of a public figure. Chris Kluwe- who I find to be a first class jerk- may believe that he is on the side of the angels, but he is not in any way in a protected class here.
The other problem is that he needs to show the negative, even the malice, in any statement he is alleging. If that were not the case, every African-American who called his friend the "n-word" in the playful context of joking around would be liable for hate speech prosecution in those situations where that is (regrettably; I believe that "hate speech" laws violate the 1st Amendment) actionable.
Priefer could say exactly what Kluwe alleges without any animus at all toward the group subjected to the statement. For example, if the issue is what we have observed it to be in 2012, where a coach was trying to get a player under his charge to get away from politics during the season and concentrate on improving performance with the job he was being paid a lot of money to perform (one-per-center money, for those of you who go for such sobriquets), so that the Special Teams meetings would not be beleaguered by reporters asking about Kluwe's TV appearance the previous evening, the coach might say "D@#nit, Chris, we need you to work on hang-time, and you are not concentrating on that because you are spending all your time and energy these days on the upcoming state constitutional amendment vote. I wish we could take all the....... blow up....nuke....blah blah", and the comment would be perhaps unwise, but not malicious or directed comment. There is not a judge, or anyone else, on the face of the earth who hasn't lost cool in a similar way over some provocation.
And, II repeat- this is not a protected class. The movement is trying desperately to achieve that with all the inapt references to Loving v. Virginia (a comparison that is an insult to an actual protected class because it demeans a very visible principle), but we are not there yet. And if there were any lawsuit tried, Mr. Kluwe would soon find out what it is like to have every word he ever spoke plastered out there in the newspapers, including every insulting or snide cartoon/comment he ever hung on a locker room bulletin board. And lots of players eager to testify to that effect.
Mr. Kluwe needs to grow up and get on with his life. His actions are not about protecting gays, they are now about promoting Chris Kluwe. I don't want to see his face again.
Did Kluwe have the most accrued years of the guys that tried out? If he did then the simplest answer to why he wasn't choosen was the salary related. Vet minimums go up with each year of service and the Bengals have a reputation for being cheap. Honest question, I don't feel like googling each of these guys to find out. Just seems to me that there is a perfectly reasonable explanation that can be made for pretty much every claim outside of Preifer's comments if they were in fact found to be accurate. Are the two sides still meeting today or is that off now?
He said she said. That's not going to hold up in court with regard to a "blacklisting" claim. Kluwe and his mouthpiece are trying this in the press. They put out a statement which is either a total lie or taken out of context from a conversation. They construct the press release to meet their needs and not the truth. The Vikings are not in "deep trouble" if Preifer said what Kluwe claims; Preifer may be suspended or even dismissed but the Vikings will suffer, at the most, a few weeks of press negative focus. What the Dolphin players and organization did is far more damaging to a person/player then terrible words possibly uttered by a coach in a context we will never know except from the biased mind of Kluwe.
DAN T: That explanation is too simple, and more importantly, it doesn't support Kluwe's claims. Arif is a smart guy, and he knows that indirectly supporting Kluwe's accusations will drive traffic, which equals $$$. At least he's clever about it: "Kluwe is saying this with confidence and certainty, which at least implies he has some level of proof. " Right, because people who feel wronged and are threatening major lawsuits typically speak out with timidity and uncertainty. Arif is my favorite sports writer, period, and I can't blame him for wanting to get as much mileage out of this story as he possible can (especially this time of year.) I just hope the start of training camp will drown out this stale story for a while.
By the way, it's not illegal to fire (or in this case, not hire) someone because of their public comments. Remember when A&E fired Phil Robertson for speaking out against homosexuality and the liberal world rejoiced? It wasn't illegal. His rights weren't being violated. He was speaking as a private citizen, but he was doing it in a public forum, and the network felt that his controversial views might be detrimental to their business. It turned out to be a bad business move, and they quickly brought him back because they wanted to preserve their cash cow (Duck Dynasty), but that doesn't change the fact that they had every right to fire him. The exact same situation applies to Chris Kluwe's efforts to play for another team: He's bold, confident, and outspoken, and a team has every right to avoid him because of it. Unless he can establish that teams asked him about his religious views (unlikely) or that the Vikings convinced other teams not to sign him, this will only make him look more petty and bitter than he already does.
Mike Priefer is not the Vikings owner, he's an employee of the team. The Vikings owner reportedly supports Kluwe's views and (according to Kluwe's article in Deadspin) directly encouraged him to keep speaking out. If any employee in this story has personal views that clash with those of the Vikings ownership, it's Priefer.
If the Wilfs felt Kluwe's politics were bad for their business, and released him because of that, and they were well within their rights to do so, why did the team's official statement deny that completely?
...
"Could it be that Cincinnati, somewhere in the coaching staff or front office, they just said, “we have enough headaches already, and don’t need to add a likely new one”?"
This is a good point. It wouldn't have to be a blacklist, and they could decide not to offer him a job because of the "headaches". It wouldn't necessarily be proof that anyone on the Vikings staff interfered (and Kluwe isn't really saying that directly in his tweet last night).
OTOH, Bengals fans might be interested to know that their team decided to bring in a guy who was so terrible that he got cut right before the playoffs, forcing them to hire another guy who the team didn't have time to try out, instead of Kluwe, who was a pretty solid if unspectacular punter right until his last year in Minnesota.
Some Vikings fans might make a similar point about spending a 5th round pick on a punter when they had Kluwe under contract for another year. Did that make the team better, in football terms?
I didn't say anything about Kluwe disagreeing with the Wilfs (or any other organization for that matter.) What I said was that, like Phil Robertson, he expressed a strong opinion on a controversial subject, and a current or prospective employer might be understandably hesitant to hire someone who is so quick to jump into the fray. Controversy isn't generally something that businesses go looking for.
In his Deadspin article, Kluwe claims that the Vikings were getting numerous requests from media outlets that wanted to interview him regarding his political activism, but that they were failing to pass those requests on to him. Is that their job? Do the Vikings have some sort of responsibility to serve as Kluwe's press secretary when the interviews had NOTHING to do with football? As you might recall, the Vikings are a professional football team. Maybe the team didn't want to deal with the B.S. Maybe they were tired of fielding complaints and interview requests every time Kluwe jumped up on his soapbox or flipped out on twitter. Whether you like it or not, his activism was a distraction, if not for him than certainly for other Vikings employees. Indeed, the only reason anyone gave a damn about anything Kluwe did or said was *because* he played for the Vikings. His status as an NFL player gave him a degree of novelty among political activists. Once he retired, he began to fade into relative obscurity...at least that's what was happening until he launched his new crusade to get Mike Priefer fired and to prevent him from every coaching again at any level because, obviously, destroying someone's life is a much better option than educating them and helping them to change their ways.
Now, if Kluwe can establish that the Vikings were actually persecuting him for his religious beliefs and/or that they made efforts to prevent anyone else from hiring him, that's a different issue altogether. If that happened, I fully support his right to seek compensation. However, if people just got tired of dealing with his penchant for controversy, he's not a victim. Don't get me wrong, I think he has every right to voice his opinions, and I admire him for doing so, but he needs to understand that the first amendment only guarantees you the right to speak your mind, not the right to avoid all possible consequences that might arise from doing so.
You used Phil Robertson as an example of someone who his employer had every right to fire for expressing personal views as a private citizen that were not supported by ownership, or felt to be bad for their business.
The two situations aren't comparable. Zygi Wilf is quoted in the Deadspin article as saying "Chris, I'm proud of what you've done. Please feel free to keep speaking out.".
What Mike Priefer thought of Kluwe's effect on the team's image is less important than the guy who actually owns the team.
As for the supposed distraction on his play, or on the performance of the team, Leslie Frazier (who Kluwe says didn't support his views otherwise) was quoted by ESPN as saying this after Kluwe's poor game against the Bucs:
"Chris is a pro," Frazier told reporters. "He's been able to deal with so many things in his career. He's been able to focus in these situations and focus on the task at hand and has been a very good punter, which he is. I don't think anything off the field is distracting him. He knows how to focus on his job, and I fully expect him to have a big game for us Sunday."
Frazier said what a coach has to say in the middle of a season. You don't publicly rip your players- you yell in private- as Priefer surely did- if that is in the cards. This statement quoting Frazier means exactly nothing.
I don't see any evidence to suggest blacklisting. The fact that he got other tryouts I would say is pretty strong evidence he was not blacklisted. Its not like how outspoken an individual he is was not public knowledge. He was also on the decline skill wise. I believe kluwe in his accusations that inappropriate derogatory comments towards his stance on gay marriage were made. I don't believe he was blacklisted. I believe he was a below average punter at best whose skills were deteriorating. That and the fact that the guy is clearly a headache for an organization and one with knowledge of his outspoken views in an NFL locker room is a significant lawsuit risk for an organization.
Phil Robertson's and Chris Kluwe's cases are absolutely comparable. The Wilf's may personally support gay marriage, but by no means does that suggest that they want the Vikings associated with any kind of controversial position. The Wilf's own the Vikings, but their personal lives are separate from their business dealings (something Kluwe apparently doesn't understand.) Why do you think sports teams don't endorse political candidates or promote religions? For every adoring fan they'd gain, they'd run the risk of losing another. That's why Zygi Wilf spoke to Kluwe personally (assuming Kluwe is telling the truth) rather than having the Vikings release a statement about his support for gay marriage or holding a press conference at Winter Park.
"That’s why Zygi Wilf spoke to Kluwe personally (assuming Kluwe is telling the truth) rather than having the Vikings release a statement about his support for gay marriage"
Like this statement?
--- "As an organization, the Vikings consistently strive to create a supportive, respectful and accepting environment for all of our players, coaches and front office personnel. We do not tolerate discrimination at any level. The team has long respected our players’ and associates’ individual rights, and, as Chris specifically stated, Vikings ownership supports and promotes tolerance, including on the subject of marriage equality. Because he was identified with the Vikings, Chris was asked to be respectful while expressing his opinions. Team ownership and management also repeatedly emphasized to Chris that the Vikings would not impinge on his right to express his views.
Any notion that Chris was released from our football team due to his stance on marriage equality is entirely inaccurate and inconsistent with team policy. Chris was released strictly based on his football performance." ---
That's the Vikings statement in response to the Deadspin article. Pretty supportive of marriage equality, really, for a team that you say won't release a statement in favor of that position.
There is no evidence that the ownership disapproved of Kluwe's views, or his expression of them, or that they acknowledged his social/political behavior as a justification for releasing him. In fact, there is evidence that they (officially at least) supported his politics and did not want to impinge on his right to express his views.
So no, the situations aren't comparable.
If Mike Priefer thought he was doing the Vikings ownership a favor by getting rid of Kluwe to protect the team's image, he thought wrong. And that would be an ambitious decision for a special teams coach to make. In fact, it would be "inconsistent with team policy", as per the team's official statement.
And again, that's not officially the reason why Kluwe was released.