Chris Kluwe vs. the Minnesota Vikings: A Legal Analysis

My beloved Minnesota Vikings are no strangers to legal dramas, and their latest legal kerfuffle reads like my third year employment law final exam.

In one corner, we have former Minnesota Vikings punter/marriage equality advocate/burgeoning rockstar/author Chris Kluwe, who recently published an article on Deadspin.com which alleges that he was released from the team due to his activism against a proposed 2012 amendment to the Minnesota Constitution which would have prohibited same-sex marriage. 

In the other corner, the Minnesota Vikings and their yet-employed Special Teams Coach, Mike Priefer.  Mr. Kluwe’s article goes on to allege that Coach Priefer said some pretty nasty things in player meetings (which will not be repeated here; you can read Mr. Kluwe’s article for his recounting of what he claims was said by his coach). 

You can listen to my discussion of the myriad of issues from the January 5, 2014 edition of News and Views with host Roshini Rajkumar here.

Let’s review the issues involved:

1.         Why Does it Matter?  As an initial matter, some folks may be asking what all of this has to do with anything?  So, you say, Leslie Frazier was fired as the Vikings’ Head Coach and Chris Kluwe is out of the NFL; why do we care what one of Frazier’s assistants said over a year ago to the Vikings’ now-former punter.  It matters in large part because Mike Priefer – the assistant whom Mr. Kluwe alleges to have made the prejudicial statements, remains employed by the Vikings.  In fact, the reports are that he is the only internal candidate for the Head Coach position and even if another is hired, management may seek to retain him on the new staff.  It also matters because Coach Priefer was in a direct supervisory role over Chris Kluwe, and if he made statements to Mr. Kluwe that created a hostile work environment, those actions could rise to the level of workplace harassment.

2.         Did Mike Priefer Say What Chris Kluwe Said He Said?

The $64,000 question is whether the allegations made by Mr. Kluwe in the Deadspin article are, in fact, true.  If so, then Mr. Kluwe may have actionable claims against the Vikings as noted above.   If, however, Mr. Kluwe’s allegations are proven to be false, then Coach Priefer may have claims against him for defamation (more on that below).

The Minnesota Vikings have engaged a couple of legal heavyweights – former Minnesota Supreme Court Chief Justice Eric Magnuson and former U.S. Department of Justice attorney Chris Madel – to conduct an independent investigation of Mr. Kluwe’s allegations.   As I mentioned on Sunday’s show, these two attorneys will be charged with finding out what was said, to whom it was said, and in what context any statements were made. 

Determining the truth of what was said is not going to be as easy as one might think.  By all accounts, Coach Priefer made the alleged statements in a “specialists” meeting; i.e., a meeting involving himself, Chris Kluwe (the punter), Blair Walsh (the kicker) and Cullen Loeffler (the long snapper).  Two of the three individuals who will be questioned are yet employed by the Vikings, and it’s entirely plausible that they “do not recall” what exactly was said. 

3.         Why Did Chris Kluwe Stay Silent Until Now?

Assuming that Chris Kluwe’s allegations against Mike Priefer are true, the logical question to be asked is why Kluwe did not come forward sooner?  He has admitted that he did not go to anyone – not Leslie Frazier, not Rick Spielman and not anyone from the NFL Players Association (the players’ union) – to report Coach Priefer’s actions.  Kluwe’s explanation is that he was worried about reporting his superior and what might come from it.

Here, in my opinion Kluwe’s argument breaks down a bit, as both federal and state law offers employees a cause of action against workplace retaliation. Under Minnesota law, workplace retaliation occurs when an employer discharges, disciplines, threatens, or otherwise discriminates against or penalizes employees because they report a violation of any federal or state law or rule, request an investigation of the employer, or refuse an illegal order.   Minn. Stat. 181.932.

Further, Title VII of the Federal Civil Rights Act, 42 U.S.C. 2000e-2(a) contains anti-retaliation provisions which establish a cause of action for any employee who suffers retaliation from their employer for asserting their legal rights.

4.         Did the Vikings Release Chris Kluwe Because of His Activism on Behalf of Same-Sex Marriage?

While much of the attention given to Mr. Kluwe’s article pertains to whether or not Mike Priefer made the alleged statements, a second issue is did Chris Kluwe lose his job as the Vikings’ punter because of his advocacy on behalf of same-sex marriage.  This is perhaps the grayest of Mr. Kluwe's claims.  It is not altogether shocking when an NFL team jettisons a veteran player for someone who the team believes can perform the same role at a much lower price. The Vikings' team history is filled with stories of veteran players - some of whom are beloved legends today and even Hall of Famers such as Alan Page and Carl Eller - who ended their careers with other teams.  In recent team history, Antoine Winfield was released due to salary issues and a year prior to Chris Kluwe's release, kicker Ryan Longwell was replaced with rookie Blair Walsh.  To maintain a claim that he was released due to his outspoken political activism, Mr. Kluwe has a difficult mountain to climb.

5.         Does Mike Priefer Have a Defamation Claim Against Chris Kluwe?

The final issue is whether Mike Priefer has any claim(s) against Chris Kluwe for defamation.  Defamation consists of the following: (1) a defamatory statement; (2) published to third parties; and (3) which the speaker or publisher knew or should have known was false.  A statement is defamatory if it "tends to injure the plaintiff's reputation and expose the plaintiff to public hatred, contempt, ridicule, or degradation." Phipps v. Clark Oil & Ref. Corp., 408 N.W.2d 569, 573 (Minn. 1987).

Some statements are so defamatory that they are considered defamation per se; and the plaintiff does not have to prove that the statements harmed his reputation. In the instant case, Mr. Kluwe is very specific in alleging that Mike Priefer said something highly prejudicial towards gays, so much so that it may be considered defamation per se.

A defamatory statement is not enough; the plaintiff must establish proof of damage to reputation in order to recover any damages for mental anguish; see Swanson v. American Hardware Mutual Ins. Co., 359 N.W.2d 705, 707 (Minn. App. 1984) (rev. denied) ("To establish a claim in a defamation action [plaintiff] must prove that the [defendant] made false and defamatory statements about them which injured their reputation.").

The issue of damages is open at this point, and largely depends upon whether the Vikings retain Coach Priefer and/or whether any other NFL team decides to employ him.  If not, Coach Priefer may argue that his damages are that he has been unable to obtain employment due to Chris Kluwe’s defamatory statements about him.

In defending a defamation claim, Mr. Kluwe has two possible defenses available to him: (1) that what he wrote is true; and (2) Coach Priefer is a public figure and the First Amendment allows someone such as Kluwe to say such things about his former coach.

The strongest of these defenses is the first.  Truth is a complete defense to a defamation claim.

As to whether an assistant coach of an NFL team is a public figure would be a matter for the court to determine in any lawsuit; however, even if a court would find in the affirmative, a defamation claim may be actionable if actual malice can be shown.  The First Amendment requires that a defamation plaintiff prove actual malice or reckless disregard of the truth when the plaintiff is a public official or public figure. New York Times v. Sullivan, 376 U.S. 254 (1964). This is a much higher burden of proof for a public figure plaintiff. Instead of showing objectively that a "reasonable person" knew or should have known the defamatory statement was false, a public figure plaintiff must prove the intent of the defendant was malicious, or that they acted with reckless disregard for the truth. This allows the defendant to prove its good faith intent and efforts as a defense.

Mr. Kluwe has been clear in his motive for the article:  he wants every NFL team to pass on employing Mike Priefer in any capacity.  That might be considered “actual malice” sufficient to overcome the additional burden placed upon a public figure plaintiff in a defamation action.

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