On Halloween 2013, a nightmare was born, one that could ultimately see two monstrous offensive lineman and monstrous entities do battle—in the courtroom. On October 31st, news broke that Jonathan Martin, starting offensive tackle for the Miami Dolphins of the National Football League (“NFL”), suddenly left his team after “O-line made fun of him and he snapped.”
Every controversy has a villain, and Dolphins offensive guard Richie Incognito fits the mold of a schoolyard bully. Incognito repeatedly “made fun” of Martin with racial epithets and profanity; in voice mails from April, Incognito “referred to Martin as a ‘half n—– piece of s—.’” This is not the first time Incognito has been accused of crossing the line with a fellow player; ESPN analyst Elizabeth Merrill dug into Incognito’s troubled past.
In contrast, Martin could easily be mistaken for a bullied “nerd” if one did not know Martin was a huge 6 feet 5 inch, 312 pound offensive lineman. Martin grew up in a family of Harvard graduates, played at Stanford University, and has considered attending law school after football. In a New York Times article on the Martin-Incognito controversy, former Stanford lineman and teammate Andrew Philips described Martin as a “phenomenal person” and that “he cares for people in the utmost way at all times.”
Whether fair or not, many might be wondering whether Martin is going to turn the tables on Incognito in court. Martin has retained the services of attorney David Cromwell, who has gone to the media with allegations that Martin “endured constant harassment, daily verbal attacks, and even a ‘malicious physical attack’ from teammates.” NFL Commissioner Roger Goodell has recently appointed Ted Wells, a prominent criminal defense lawyer and partner at the New York-based firm Paul, Weiss, Rifkind, Wharton & Garrison LLP, to “direct an independent investigation into issues of workplace conduct involving the Miami Dolphins.” There is little doubt that emotional distress would be a focal point in a potential lawsuit; Martin recently checked himself into a South Florida hospital for “emotional distress.”
Not Mano-a-Mano Between Martin and Incognito: Watch Out Dolphins (and the NFL)
The law recognizes the intentional infliction of emotional distress (“IIED”) as a tort, a branch of the law commonly associated with personal-injury lawyers and “ambulance chasers.” To win on an IIED claim, Martin would likely have to prove four elements: (1) the defendant must act intentionally or recklessly; (2) the defendant’s conduct must be extreme and outrageous; and (3) the conduct must be the cause (4) of severe emotional distress. Checking into a hospital for emotional distress and continuing to collect evidence of racially charged and profane texts and verbal abuse likely would support Martin’s hypothetical IIED claim. However, there is potentially bigger fish to fry, with a corresponding larger payout, if Martin can sue Incognito personally, as well as the Dolphins franchise and the NFL itself.
Ted Wells is being paid not just to talk to Incognito, Martin, and other players to hear the facts, but perhaps more importantly to sit down with the coaching staff and figure out whether Incognito and other players were acting on their own accord, or at the behest of Dolphins Head Coach Joe Philbin as part of a program to “toughen up” Martin. The legal concept of respondeat superior, also known as vicarious liability, allows an injured party to hold the employer legally responsible for the wrongful acts of an employee or agent if such acts occur within the scope of employment.
Here, the Dolphins franchise and the NFL could be liable if Martin can prove that Incognito and others were harassing and abusing Martin at the coaches’ behest and that the coaches—and management—refused to or should have known to intervene. Notably, Incognito did not respond when asked about whether he was “taking orders from the coaching staff” during a recent interview with Jay Glazer after Commissioner Goodell’s appointment of Ted Well. But, we’re all accustomed to hearing that a massive entity such as the NFL has some kind of liability shield built into their contracts with employees.
Technical Difficulties: Please Stand By as We Try to Figure Out the CBA
Search for the terms “emotional,” “distress,” and “bullying” in the 2011 Collective Bargaining Agreement (“CBA”) negotiated between the NFL and NFLPA and you get zero hits. The CBA, however, has a catch-all provision in Article 43, covering “non-injury grievances.” If Martin does file a lawsuit, expect to hear about Article 43 early and often.
Article 43 covers “any [grievance] arising after execution of [the CBA] and involving the interpretation of, application of, or compliance with, any provision of [the CBA] . . . ” The repeated use of “any” in the section one definition of Article 43 strongly implies its purpose as that catch-all provision for any dispute not explicitly covered in the CBA. Article 43 requires that a grievance be initiated within fifty days “from the date of the occurrence” or “the date on which the facts of the matter became known or reasonably should have been known to the party initiating the grievance, whichever is later.” The clock started on October 30 or October 31, when various sources broke the news that Martin was “taking a leave of absence” from the Dolphins.
The responding party or parties—depending on whether Martin targets only Incognito—has ten days to file answers to the grievance. At that point, if there is no settlement after the filing of answers, the grievance ultimately may come before a panel of arbitrators who have to be approved by the NFLPA and Management Council. The fact that both Martin and Incognito are players who belong to the NFLPA could be an elephant in the room; whose side would the NFLPA take in such a dispute between its own members?
A crucial side-story is whether the Dolphins keep Martin on the team and whether they keep him under contract. Article 44 covers injury grievances between a player and a franchise, providing a route to extending liability beyond Incognito himself.
A natural question is: why is an injury grievance being discussed in the first place? No one tore Martin’s ACL or physically injured him, right? The fact that the CBA does not explicitly cover emotional distress could open a backdoor for an Article 44 injury claim. Martin could claim that the actions of Incognito so traumatized him that he became physically unable to play—the fact that he left the team and checked into a hospital makes that claim plausible. However, that claim is barred if Martin is still under contract; Article 44 clearly provides that an injury grievance is a claim filed when a player’s “NFL Player Contract . . . was terminated by a Club.” The Dolphins may simply have to eat the rest of Martin’s contract and keep him on the team even if he stays away just to deter any possibility of an Article 44 claim.
Where Does the Buck Stop?
There is a chance that Martin may be able to go to court regardless of the CBA arbitration clauses. The CBA does not contain the terms of emotional distress and bullying, and Florida courts recognize the tort of the intentional infliction of emotional distress. However, the courts have been reluctant to step in where there is a clear grievance arbitration process in place; ask Alex Rodriguez.
It is very likely that any legal dispute raised by Martin will have to go before arbitrators under the CBA. The appointment of Ted Wells and Incognito’s refusal to answer a question about orders from higher-ups signal the beginning of the defense plan for the Dolphins and the NFL at large. Whether Martin decides to pursue a legal remedy and how that dispute is resolved will go a long way in determining how those outside the locker rooms feel about the use of racial epithets and hazing in the NFL and beyond.