consultants are sandburs

Thursday, January 02, 2014

Chris Kluwe. A salvo. And Moore v. Hoff.

Former Vikings punter Chris Kluwe's online statement here, was headlined, "I Was An NFL Player Until I Was Fired By Two Cowards And A Bigot." This relevant excerpt:

I honestly don't know if my activism was the reason I got fired.

However, I'm pretty confident it was.

Allow myself to tell you a story about ... myself. The following is a record of what happened to me during my 2012 season with the Minnesota Vikings, written down immediately after the 2013 draft in April, when I realized what was happening, and revised recently only for clarity. I tried to keep things as objective as possible, and anything you see in quotes are words that I directly recall being said to me.

This is a story about how actions have consequences, no matter how just or moral you think your cause happens to be, and it's a story about the price people all too often pay for speaking out.

During the summer of 2012, I was approached by a group called Minnesotans for Marriage Equality, which asked if I would be interested in helping defeat what was known as the Minnesota Gay Marriage Amendment. The proposed amendment would have defined marriage as "only a union of one man and one woman." (It was voted down, and same-sex marriage is now legal in Minnesota.) I said yes, but that I would have to clear it with the team first. After talking to the Vikings legal department, I was given the go-ahead to speak on the issue as long as I made it clear I was acting as a private citizen, not as a spokesman for the Vikings, which I felt was fair and complied with. I did several radio advertisements and a dinner appearance for Minnesotans for Marriage Equality. No one from the Vikings' legal department told me I was doing anything wrong or that I had to stop.

[...] On Sept. 8, the head coach of the Vikings, Leslie Frazier, called me into his office after our morning special-teams meeting. I anticipated it would be about the letter (punters aren't generally called into the principal's office). Once inside, Coach Frazier immediately told me that I "needed to be quiet, and stop speaking out on this stuff" (referring to my support for same-sex marriage rights). I told Coach Frazier that I felt it was the right thing to do (what with supporting equality and all), and I also told him that one of his main coaching points to us was to be "good men" and to "do the right thing." [...]

On Sept. 9, before our game against the Jacksonville Jaguars, the owner of the team, Zygi Wilf, came up to me, shook my hand, and told me: "Chris, I'm proud of what you've done. Please feel free to keep speaking out. I just came from my son's best friend's wedding to his partner in New York, and it was one of the most beautiful things I've ever seen."

On Sept. 10, I was once again called into Leslie Frazier's office. Coach Frazier asked me if I was going to keep speaking out on the matter of same-sex marriage and equality. I responded that I was, and I related what Zygi Wilf had said to me at the game the day before. Coach Frazier looked stunned and put his hand across his face. He then told me: "Well, he writes the checks. It looks like I've been overruled." [...]

Throughout the months of September, October, and November, Minnesota Vikings special-teams coordinator Mike Priefer would use homophobic language in my presence. He had not done so during minicamps or fall camp that year, nor had he done so during the 2011 season. He would ask me if I had written any letters defending "the gays" recently and denounce as disgusting the idea that two men would kiss, and he would constantly belittle or demean any idea of acceptance or tolerance. [...] Mike Priefer also said on multiple occasions that I would wind up burning in hell with the gays, and that the only truth was Jesus Christ and the Bible. He said all this in a semi-joking tone, and I responded in kind, as I felt a yelling match with my coach over human rights would greatly diminish my chances of remaining employed. I felt uncomfortable each time Mike Priefer said these things. After all, he was directly responsible for reviewing my job performance, but I hoped that after the vote concluded in Minnesota his behavior would taper off and eventually stop.


Near the end of November, several teammates and I were walking into a specialist meeting with Coach Priefer. We were laughing over one of the recent articles I had written supporting same-sex marriage rights, and one of my teammates made a joking remark about me leading the Pride parade. As we sat down in our chairs, Mike Priefer, in one of the meanest voices I can ever recall hearing, said: "We should round up all the gays, send them to an island, and then nuke it until it glows." The room grew intensely quiet, and none of the players said a word for the rest of the meeting. [...]


In November and December, I was frequently marked for negative scores by Mike Priefer on our "Production Point" sheet for punts that earlier had been marked positive, despite the numbers being almost exactly the same in terms of hangtime and distance. I do not know if these "Production Point" sheets were ever shown to our general manager or head coach, nor do I know if they were used to evaluate my job performance, though I suspect they were. [...]


On April 29, my first day back in the facility after the draft, I met with Rick Spielman after Mike Priefer had told me Rick wanted to see me. Rick told me that this was solely about competition and had nothing to do with my views. I do not believe he was telling the truth. I had not been approached about reducing my contract for cap-space purposes, nor was my punting average poor enough to justify spending a fifth-round pick on a punter for competition. [...]

On May 6, I had a meeting with Rick Spielman. He told me that the team was releasing me, and he thanked me for the great work I had done for the Vikings, and also said he would tell other teams how professionally and competently I had executed my duties over the years. I then had a meeting with Leslie Frazier, who repeated that I had been "a fantastic player for this organization" and who also told me, "Don't close any doors behind you—you never know when things will come full circle." He thanked me for my services as well, and said I was a great football player. Then I was escorted from the premises and was no longer a Viking.

So there you have it. It's my belief, based on everything that happened over the course of 2012, that I was fired by Mike Priefer, a bigot who didn't agree with the cause I was working for, and two cowards, Leslie Frazier and Rick Spielman, both of whom knew I was a good punter and would remain a good punter for the foreseeable future, as my numbers over my eight-year career had shown, but who lacked the fortitude to disagree with Mike Priefer on a touchy subject matter. [...]

If there's one thing I hope to achieve from sharing this story, it's to make sure that Mike Priefer never holds a coaching position again in the NFL, and ideally never coaches at any level. (According to the Pioneer Press, he is "the only in-house candidate with a chance" at the head-coaching job.) It's inexcusable that someone would use his status as a teacher and a role model to proselytize on behalf of his own doctrine of intolerance, and I hope he never gets another opportunity to pass his example along to anyone else. I also hope that Leslie Frazier and Rick Spielman take a good look in the mirror and ask themselves if they are the people they truly profess themselves to be.

Some will ask why I waited so long to tell this story. It's a fair question, and I have two answers. The first is that I still have friends on the Vikings, and opening up something like this during the season would not help them focus on their jobs. By doing it now, I hope they don't have to answer questions about an issue that concerns only four people, and I hope the issue will have died down before next season starts.

The second is that I wanted to prove I still had the physical ability to compete in the NFL. I can still hit the ball 45 yards outside the numbers with good hangtime, and at the tryouts I've had this year I've gotten praise from the scouts and personnel people on hand, but for whatever reason I cannot find a job. (Side note: My numbers from last year would put me right in the middle of the pack for this year, and I've traditionally been in the middle to top third of punters each year).

However, it's clear to me that no matter how much I want to prove I can play, I will no longer punt in the NFL, especially now that I've written this account. Whether it's my age, my minimum veteran salary, my habit of speaking my mind, or (most likely) a combination of all three, my time as a football player is done. Punters are always replaceable, at least in the minds of those in charge, and I realize that in advocating noisily for social change I only made it easier for them to justify not having me around. So it goes.

Some will ask if the NFL has a problem with institutionalized homophobia. I don't think it does. I think there are homophobic people in the NFL, in all positions, but that's true for society as well, and those people eventually get replaced. All we can do is try to expose their behavior when we see it and call them to account for their actions.

Thank you for taking the time to read my story. Never be afraid to do what's right. If no one ever says anything, nothing ever changes.

—Chris Kluwe, former NFL player

If I missed an ellipsis in there, it was unintentional. The italics was added for emphasis.

Readers do not need a road map to see parallels between Kluwe's commentary and Moore suing Hoff for tortious interference with a job [or job expectancy]. Kluwe is clear and direct, in saying he wants to interfere with Priefer's future employment opportunity.

So can Priefer sue over that? Read Moore v Hoff. Form your own judgment. Kluwe appears to have clearly worded his factual allegations, and the opinion of coward, coward, bigot alone are statements of opinion based upon the factual claims Kluwe made.

Will Priefer sue? It's doubtful, and more so given Moore v Hoff, the case saying what it does about truth and the right to say truthful things. If any reader feels I left out key parts of Kluwe's account, the excerpt is already long, and the response is every reader is presumed to have gone to the entire online item, if caring to, so do not criticize any editing done in the above quote, for brevity.

A final question of interest, Kluwe's statement being on the web means that it has been published worldwide. Were Priefer to sue, would he have an opportunity to do forum shopping as to where to file, or is the Minnesota nexus so overwhelming in things that he'd have to file here, with Moore v Hoff as precedent?

While interesting hypotheticals can be formulated, it looks as if statements of concern and denials will end things, e.g., here, here and here. If Kluwe were to sue claiming a wrongful job termination he would have a hard case to prove, since talent judgments in professional sports is subjective aside from clear situations such as Tom Brady or Adrian Peterson. Yet it would be a fact question, presumably for a jury rather than a bench trial. Would it matter whether Jeff Locke's punting in his rookie year was better on average or less so than Kluwe's career stats? It could be one factor, as evidence, but surely not conclusive evidence. Would you trade Blair Walsh for the Packers' kicker? It is that level of uncertainty at issue. "At will" employment carries presumptions of employer/management discretion in running a business being favored, absent some showing of a wrongful, proscribed motivation, which would have to be proven, as a fact question where, generally what the jury says, is upheld on appeal.

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