Shortly after Chris Kluwe indicated on Twitter that he and his lawyer, Clay Halunen, intended to pursue a lawsuit in court come Monday, the Vikings responded full force. First, the Vikings have released a conclusion of the report at kluweinvestigation.com, which you can download here.

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UPDATE: It’s extremely important to note that that report is not written by Chris Madel or any of the other investigators at Robins, Kaplan, Miller & Ciresi LLP. In January, the Vikings hired RKMC and Chris Madel to conduct an independent investigation. Some time in the past week, they hired Littler Mendelson to handle the legal matters surrounding the release of this report and potentially any lawsuits the Vikings would be subject to. Littler Mendelson (specifically, it seems, Donald S. Prophete of Littler Mendelson) wrote the memo, which is drawn upon the report.

Again, Littler Mendelson is being paid to protect the Vikings, which means the 29-page document everyone is working off of is written in a particular way to make the Vikings look as good as possible, which means there is a very good chance of deliberate selectiveness in choosing what facts to report from the investigation. They are also free to insert their own facts at will.

If you’re reading the report, take care to note which conclusions or arguments are preceded by attribution to the investigation (usually referred to “RKMC” or the “Investigators”) and which arguments or conclusions are presented as facts without attribution to who discovered them. Generally, if a player was “interviewed to have said” or “reported that,” it is also a reference to the investigation.

For example, it is curious that the report did not seemingly investigate Kluwe’s claims of altered performance grades, religious discrimination or what Rick Spielman did upon learning from Les Pico that Mike Priefer made non-specific “derogatory remarks”. It would also explain the inclusion of weirdly irrelevant data (like some of the specious use of punting statistics and the section about how much Wilf support the LGBT rights movement).

Though the Vikings have been very forward about taking shots at Kluwe for litigating in the press, the fact that they’re producing a scrubbed memo that is as favorable as possible to them but also excoriates Kluwe means they are now “guilty” of the same thing, but that doesn’t mean the Vikings are any more in the wrong. Simply that in attempting to control the message, they are trying to make sure—just like Kluwe—that they have a better media presence (and that Kluwe has a worse one) than otherwise would have happened.

In the comments below, commenter XLevity points out that deliberate misrepresentation of the findings would violate the American Bar Association’s code of ethics, which is true. That is also largely irrelevant, because a summary of the findings written by Littler Mendelson designed to protect the Vikings does not have to violate the ABA’s code of ethics in order to be misleading; there is a difference between selectively providing relevant information in order to construct a one-sided case and deliberately misrepresenting the investigation’s findings.

Nowhere in the document should you suspect Littler Mendelson of lying, but it is still important to keep track of what is attributed to the investigation and what facts are proffered at will—a conversation Spielman had with his wife, for instance, may be in the report and in the memo Littler Mendelson wrote, but the report may have dismissed the importance of that conversation, while the memo may not have mentioned how important that conversation was to their findings.

The post below has been changed to reflect that this is not the investigation by RKMC, but a memo written by lawyers representing the Vikings.

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The memo, which has been sanitized by the Vikings according to Kluwe, contains a number of findings that are not favorable to Kluwe, other than the claim that Priefer made the alleged comment. There’s a 150-page executive summary of the report that has not been released.

In the memo, it’s reported that Madel and other investigators found that Priefer did in fact make the statements Kluwe alleges him to have made, but there are conflicting reports about how it was taken—Loeffler reportedly claims that the statement was “laughed off” at the time. Regardless, a statement by itself like this may not be enough grounds for a lawsuit of any sort. The rest of the memo as the Vikings have released it is not necessarily friendly to Kluwe. As a result, Priefer released the following apology:

I owe an apology to many people – the Wilf family, the Minnesota Vikings organization and fans, my family, the LGBT community, Chris Kluwe and anyone else that I offended with my insensitive remark. I regret what has occurred and what I said. I am extremely sorry but I will learn from this situation and will work on educating others to create more tolerance and respect. – Mike Priefer

Mike Priefer will be suspended three games, but upon completion of appropriate sensitivity training can have that reduced by one (so he can reduce his suspension to a minimum of two games).

UPDATE: Adam Schefter reports that, in addition to his three-game suspension, Priefer will be fined.

Other Claims, Claim by Claim

1) For the claim that the Vikings released Kluwe for his activism or his views:

The memo quotes the report to have found that concerns were cropping up about Kluwe’s performances from the beginning of 2011. Specifically, Priefer had been asked in press conferences whether or not he felt Kluwe had been “up and down” in press conferences, while he also submitted reviews of his performance that were disfavorable, and had been for some time.

The issues identified, from a performance perspective were: too many line drive punts (not forcing fair catches—hang time) and inconsistency when punting outdoors.

Assistant manager George Paton confirmed these assessments, arguing that Kluwe’s leg was “not strong enough” and that Kluwe was “neither a great directional punter nor good at placing the ball inside the 20-yard line.” Head coach Leslie Frazier agreed with that assessment, while assistant special teams coach noted that Kluwe could “only kick right.” Vice President of Football Operations Rob Brzezinski tacked on to that assessment, also agreeing that Kluwe was poor at directional punting.

General manager Rick Spielman indicated that the special teams coaches “pretty unanimousl[ly]” agreed that Kluwe should be released from the team. Professional scouts Jeff Robinson and Scott Kuhn had some different opinions. Robinson said he liked Kluwe more than the other scouts, but that he acknowledged a poor 2012. Kuhn said the consensus was that Kluwe was too highly paid and too erratic. Director of Pro Scouting Ryan Monnens was part of that consensus.

There were outside assessments from former Chicago Bears general manager Jerry Angelo and Pro Bowl punter Craig Hentrich. Angelo gave comments and Hentrich gave grades. They were asked to assess (1) get-off time; (2) gross punting average; (3) net punting average; (4) hang time; (5) directional punting; and (6) pooch punting.

Metric Hentrich Get-off time A Gross Avg Net Avg B+ Hang Time D Directional Punting C Pooch C Overall C

As you can see, Hentrich did not give a grade for “gross average” but instead said “[h]aving the opportunity to play 15 of 21 games in domes does make this significantly easier to accomplish.” Hentrich determined that Kluwe would most likely be in the top third of the NFL for gross punting average. One could reasonably project that to something like a C+ or a B- if you were really concerned. The hang time is the real concern.

Hentrich did take care to point out that Kluwe’s hang time was far worse outside and that net punting average is not a great statistic, as it is generally a product of coverage and special teams.

Jerry Angelo agreed that the get-off time was very good and made particular note of the hang time, which he said was very low—though he did not notice a significant difference between outdoor and indoor punting. Angelo disagreed strongly with the argument that Hentrich made that Kluwe could not pin the team inside the twenty, saying he “did “a very good job of placing the ball inside the 20 when he’s around midfield.” Angelo said, in his evaluation, “this is what [Kluwe] does the best consistently.”

For those curious, Pro Football Focus’ statistics indicate that Kluwe put opponents inside the twenty rarely as a percentage of his total punts, ranking 29th of 32 punters with at least 50 punts. On the other hand, that could have been a product of field position, as his inside-the-20 to touchback ratio was the fourth-best in the league, one better than Andy Lee’s and just under Jon Ryan’s.

That is probably irrelevant, as Kluwe led the league in percentage of punts returned and specifically had poor hang time outdoors.

Jerry Angelo said that the team would have been justified in releasing Kluwe if they did not like his punting style, they feel he’s at an age where he should decline soon and that they feel his veteran salary was too high. He “thought it was reasonable for the Vikings to release Kluwe after his 2012 season given Kluwe’s age and the presumption that his leg strength would diminish as he got older.”

This was especially true in light of the fact that the team would be soon playing in an open-air stadium for two seasons.

From the memo, “Angelo noted that a punter’s hang time and distance are the most important criteria when playing outdoors.” Final note:

No interviewed witness agreed that Kluwe had a good year in 2012.

2) For the claim that the coaching staff improperly tried to discourage his activism

The memo concluded that the Vikings were concerned about the potential impact of any distraction from the activism, but not that they attempted to discourage the activism itself. Kluwe reported that he approached the Vikings legal department to ask if he could advocate on behalf of marriage equality and they approved.

Outside public relations consultant Lisa Levine was involved in at least one meeting between former head coach Leslie Frazier and Kluwe, and she does not recall any attempts to dissuade Kluwe, implicit or explicit.

In September of 2012, the report indicates that Priefer voiced support for Kluwe’s activism, while Spielman stated that Kluwe’s views were not a distraction. The report indicates that Spielman encouraged Kluwe.

Les Pico indicated that while the staff outwardly indicated that they didn’t feel it was a distraction, players felt it was, saying there was a “buzz” around the team about the debate and his involvement, and the players thought it was a distraction despite agreeing with his stance.

In response to Kluwe’s claims that players never asked him to tone it down, both former kicker Ryan Longwell and long snapper Cullen Loeffler had multiple conversations where they requested he do exactly that.

Longwell pointed out that “he noticed Priefer’s frustration with Kluwe’s “off-the-field” issues. He also noted that Frazier had asked Longwell to try to “get Kluwe to calm down.””

Kluwe evidently responded by saying he could stand for anything he wanted to. There are some interesting sequencing issues involved with Longwell here, detailed below, in the section titled “Kluwe’s response.”

3) On the claim that Kluwe’s statistics were in line with his career statistics and in line with other punters

In the memo, Littler and Mendelson lawyer Donald S. Prophete mentions that Kluwe evidently stated his performance was better than at least five other punters who played during the 2013 season.

In the report, Kluwe stated that his 2012 was better than at least 5 who played in 2013, naming three: 1) Sav Rocca of the Washington Redskins 2) Ryan Quigley of the New York Jets and 3) Spencer Lanning of the Cleveland Browns.

The investigators looked at some statistics gathered about Chris Kluwe to confirm and reportedly concluded that he fell below his averages in several categories. Specifically, the number of fair catches forced (12) were nearly three below his career average (14.7). His gross punting average was far worse (though them noting his longest punt was four yards shorter than his average in his first seven years is interesting, but ultimately trivial). They also compared his longest punt to other punters, and found him ranked 30th of 32 qualified punters in that category (again, oddly trivial).

The investigators, according to Prophete, concluded that drafting Jeff Locke made sense for a number of reasons (his ranking at CBS, his round projection and his price tag). There is an irrelevant section where Locke is compared favorably to Kluwe, though he is not evaluated using the same criteria Kluwe was (in particular, get-off, hang time and directional punting ability).

4) On potential claims of tortious interference/blacklisting

From the mem0:

After the Vikings released Kluwe, Priefer recalled that he spoke favorably to coaches from other teams, including the Cleveland Browns, who made inquiries about him.11 He recalled telling them that “He [Kluwe] doesn’t bring ‘off the field stuff’ on the field.” Spielman similarly spoke favorably of Kluwe to Reggie McKenzie of the Oakland Raiders, telling him that he would definitely “take a shot on Chris.” Spielman also told McKenzie that he had no concerns about the “off-field stuff.” Spielman said to McKenzie that Kluwe’s political views were not a distraction. On May 15, 2013, the Oakland Raiders signed Kluwe to a one-year contract.

Littler Mendelson also concluded there was no evidence that the team undercut Kluwe’s opportunities with other teams. Investigators attempted to contact the Oakland Raiders, Cincinnati Bengals, Buffalo Bills and Chicago Bears about Kluwe’s interactions with them and the nature of their evaluation of him, but they declined to comment, according to the memo.

5) On the claim that the Vikings created a hostile work environment on the basis of sexual orientation

From the memo:

The investigation did not reveal any systemic or institutional problems with respect to homophobic behavior within the Vikings organization. Many interviewees said that they did not hear any intentionally derogatory or harassing comments toward gay individuals. Several, however, noted “insensitive” or “immature” comments, such as, the clothing someone was wearing “looks gay.”

No other witnesses recalled hearing Priefer continue to make inappropriate statements about sexual orientation, per Prophete.

The Vikings have instituted diversity and anti-harassment training for nine years, and it has been mandatory for all staff, coaches and players for the last three years.

6) On the claim that the management knew of inappropriate statements and failed to address them

Chris Kluwe said he never reported the statements, according to the memo, to Human Resources or anyone else in the organization other than Loeffler and kicker Blair Walsh. Kluwe did discuss the comments with Les Pico, however, but specifically asked Pico to keep the allegations confidential so that Loeffler would not be blackballed (Kluwe was “adamant”).

Loeffler had signed an affidavit corroborating Kluwe’s report.

Les Pico, according to the memo, wanted to respect Kluwe’s confidentiality, but also wanted to report a potential violation of hostile workplace laws. He reported to Spielman and Kevin Warren (then VP of Legal Affairs and Chief Administrative Office, now holds a similar title) that there was a problem between Kluwe and Priefer that was serious, but would not divulge the details.

In the second interview with Pico, he said to the investigators that he told Spielman and Warren about “derogatory statements.” There was no evidence of written or verbal communication that Pico raised specific concerns about the allegation, per Kluwe’s request.

When asked why he didn’t bring the comments to the attention of others, Kluwe explained he didn’t know he was going to be released at the time. This must have changed at some point, because earlier in the report, the investigators indicated that Kluwe “knew he was going to be released” when he came to Pico in May. Kluwe also indicated in interviews outside of the investigation that he didn’t “trust anyone” inside the organization.

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Impact

The impact of this is smaller than one might think. In the report, there’s indications that Kluwe acted unprofessionally, including insensitive remarks about the Jerry Sandusky situation at Penn State and dropping his pants in front of 20-25 business people on a tour throughout the locker room.

Those anecdotes should not have any impact on the specific legal claims brought forth by Kluwe—they do not indicate that Kluwe was more or less subject to religious discrimination, tortious interference in contractual obligations, a hostile workplace, retaliatory termination, intentional infliction of emotional distress or defamation.

Though Kluwe comes out of this memo—again, one that has been scrubbed by the Vikings, per Halunen and Kluwe—looking far worse, all the negative anecdotes serve to tarnish his reputation and make him look more like an asshole but do not absolve Mike Priefer or the Vikings of legal claims.

From what we can tell, it will be difficult for Kluwe and Halunen to pursue the blacklisting/tortious interference claim given the positive recommendations to other teams or a defamation claim, unless Kluwe can use the report (unlikely) to draw up additional grounds for defamation.

Then again, Kluwe has himself brought up the situation regarding his tryouts in Cincinnati and may have brought it up to the investigators. If so, then it is at least a little interesting that this hasn’t been included in the report—though Cincinnati did not respond to requests for an interview, there is the possibility that investigators could have looked at recorded communication between the two teams to inquire about this specific allegation.

If Kluwe’s defamation claims stem from other alleged incidents—those aside from their interactions with other teams—then the report either did not address them or the team released a version of the report that did not address them.

The hostile workplace claim is on much shakier ground with the release of this report, though it should be noted that Kluwe was also engaging in protected activity, not merely a member of a protected class. Still, it does not look like, based on the information at hand provided to us by the Vikings, that they violated the Minnesota Human Rights Act with regards to his work to “advance the cause of human rights” (wording of the law).

There is no indication in the released report of any activity, favorable or unfavorable regarding Kluwe’s claim of religious discrimination. I do not know if the investigation attempted to cover this ground, though Kluwe is claimed to have alleged in interviews that Priefer said the following statements:

That [Kluwe] would wind up burning in hell with the gays, and that the only truth was Jesus Christ and the Bible

“You’ll burn in hell with the gays”

“Jesus Christ is the only salvation”

“The Bible is the only book that’s right . . . it doesn’t matter what else you read”

Some of those statements, particularly the last two, would not likely be reasonable grounds for religious discrimination claims by themselves, but repeated proselytizing at the workplace when it is explicitly unwanted can constitute harassment, and therefore discriminatory behavior.

The other remarks Kluwe alleges Priefer to have made (that Priefer used a derogatory term to refer to gay people, or that Priefer outwardly stated that “two men kissing is disgusting”) do not appear to be supported, given the conclusions the report made about a hostile workplace environment with regards to sexual orientation.

As I’ve stressed a few times that the specific (presumed) fact that the Vikings would have released Chris Kluwe otherwise is not necessarily a legal defense depending on the venue the lawsuit and the standard used to evaluate a wrongful termination claim. Given what the Vikings have released of the report, and what we know, it still would be difficult for Kluwe to pursue a wrongful termination lawsuit, because what the Vikings have released indicates that he would not be able to sufficiently prove the Vikings may have retaliated against him or his work under the “significant factor” test.

Commenter Krauser (who you will see in the comments section below as well) had a number of interesting observations about the nature of the report and its odd inclusion of certain data at Footballs Future.

The discussion of Les Pico’s role is troublesome. Kluwe and Loeffler reportedly told him about Priefer’s remarks but both wanted it to be kept confidential. Pico is described as being “in a bind”. He is described as informing Spielman “that there was a problem between Kluwe and Priefer, but not divulging anything specific about what Kluwe alleged”. The report goes on to say: “The independent investigation found no written or verbal communication or written document—whether email, memorandum, calendar appointment, text message, voicemail, etc.—wherein Pico raised any issue regarding Kluwe to anyone.” What it *doesn’t* say is what Spielman did with what Pico brought to him, or whether Spielman addressed the problem with Kluwe or Priefer or anyone. That’s a pretty big gap in the story. . . . There is no evidence offered that the Vikings management was supportive of Kluwe’s activism, beyond their own description of their statements and point of view. Supportive comments were apparently made by Frazier (who denies telling Kluwe to stop speaking out), Spielman (in a private conversation with his wife) and even Priefer (who “voiced support for Kluwe’s activism, even as he acknowledged Kluwe’s political views differed from his own.”). The report passes along these descriptions without noticing that there is “no support in the record” for them. What Spielman said to his wife over breakfast is evidence, apparently.

And so on. It’s an interesting read.

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Kluwe’s Response

Chris Kluwe has responded with vitriol on Twitter. Much of it, I don’t need to go into—including threats to leak damaging information to the Vikings, and actually leaking potentially damaging information about the Vikings which may not even be true.

In part, Kluwe is requesting that we make sure to remember that Priefer was guilty (though his claims of improper focus are not helped with leaked rumors) and that it is important to emphasize that the full report is not out.

The report includes information about Ryan Longwell, but Kluwe claims that the report must therefore include specious information because “Blair Walsh was [their] kicker at the time.” Longwell’s interactions with Kluwe are many, and Kluwe began to get involved in the marriage equality debate after a request made in “the summer of 2012.” This would support Kluwe’s claim that Longwell could not have been around at the time the reported distractions were a result of his activism. Ryan Longwell was not on the roster after the free agency period started, well before the beginning of summer.

This would at the very worst imply that Kluwe was kind of a distracting guy, though this does not rebut the report’s claims that Les Pico and “other players” saw the activism as distracting.

Kluwe claims that he was asked specifically to only punt right, not left, for better results. This is sort of a reflexive statement, however. If the punt coverage was better on the right, that is what they would ask of Kluwe independent of his ability. But if he is bad at punting left, then they would also ask that of Kluwe.

The person Kluwe is quoting by way of the report is Chris White, the former special teams assistant with the Vikings, who would theoretically be familiar with instructions given to Kluwe about how to punt. Spielman, who would theoretically also be informed of Kluwe’s instructions when evaluating (one would hope) has been quoted in the report as saying he was “horrible with directional punting to the left.” There are numerous other members on the staff who argue Kluwe is bad at directional punting.

Kluwe additionally claims that the management “threw Les Pico under the bus.”

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Executive summary, full report, or something in between?

There is some interesting, if somewhat conflicting information regarding how “open” or at least thorough Kluwe’s lawyer wanted the investigation to be. According to the Star Tribune, Madel sent an email to the investigators asking that the “full report” not be released. That can mean a few things:

In a July 8 e-mail Halunen sent Madel, one of the independent investigators, Halunen appeared to suggest that the Kluwe team no longer wanted the entire report released. “… The more I think about it I believe it would be a mistake for a number of reasons,” Halunen writes in the e-mail, obtained by the Star Tribune from a source close to the investigation. “They [the details] will only provide fodder for the media and pundits to attack the methodology, integrity or content to serve their own agenda. Finally, why should confidences shared by witnesses during the course of the investigation that may be very personal in nature be shared publicly?” When asked about the e-mail, Halunen said his client wants the 150-page investigation released but not the “thousands of pages” of “backup data” containing interviews and other private matters unrelated to the investigation to protect the confidentially of the other witnesses. In the 150-page report Halunen and Kluwe want released, Halunen said, there are unflattering remarks made by Kluwe. He said he and Kluwe are not trying to hide from that. “He said some things that might be offensive to some people, and he completely owns that,” Halunen said. “It’s sort of a different culture. A lot of stuff goes on in the locker room. Sometimes, on occasion, he’s part of that too. … It was jokes. Anyone that would read it would say, ‘Oh, that’s funny.’ Nothing that we’re worried about at all. All innocent stuff.”

As disingenuine as it sounds (and make no mistake, there’s every reason to believe Halunen made a misstep stemming from some level of disingenuousness), he is right that there is a substantial difference between releasing the 150-page summary and the thousands of pages of interviews and whatnot that could include some embarrassing or incriminating information from witnesses. It’s clear that the source that leaked the email to the Star Tribune had an agenda in doing so, but they weren’t necessarily wrong.

Certainly, Kluwe is not innocent when it comes to contributing to a poisonous locker room environment. Kluwe has claimed that he’s “mocking the rapists” in that specific anecdote, but it fails a fairly critical test of satire: when joking about a sensitive subject, it is generally considered offensive to make a joke that the victims would not find funny. That is, “punching up, not down.”

Regardless, Halunen is correct in pointing out that he could very well be arguing against releasing the “full report” but in favor of releasing the full conclusion without being contradictory. But without being specific in his press conference (and without knowing the full text of the email), it looks very bad.

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Also of note, the Wilfs also released their own apology: