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 Less likely would be criminal charges against offensive lineman
Richie Incognito, who was suspended by the Dolphins after fellow
lineman Martin left the team 2½ weeks ago. Martin's attorney, David
Cornwell, says Martin was repeatedly harassed by Incognito and
others in ways that "went far beyond the traditional locker room
hazing."
For Martin to win a lawsuit, Nova Southeastern University law
professor Bob Jarvis said he'd have to show precisely that.
"It will be crucial for Martin to convince a jury that even with a
rough workplace, there is a line that cannot be crossed and it was
crossed here," Jarvis said.
One path for Martin to take would be filing a grievance with the NFL
players union or a complaint with the NFL itself. Aside from that,
legal experts say there are several avenues he could take to sue the
Dolphins. Cornwell did not respond to an email asking for additional
comment on any of these options.
The NFL's special investigator, Ted Wells, plans to meet Friday with
Martin, who is with his family in Los Angeles and is receiving
counseling. Dolphins owner Stephen Ross also plans to meet at a
later date with Martin.
Interestingly, Martin's mother, Jane Howard-Martin, spent almost 20
years practicing employment law and wrote numerous articles in legal
journals on such issues as workplace discrimination and harassment.
It's not known whether she has any role in her son's decisions;
Howard-Martin is now assistant general counsel for Toyota Motor
Sales USA Inc. in Los Angeles.
Two labor-employment lawyers at Venable LLP in New York, Michael
Volpe and Nicholas Reiter, said in a written analysis of the Martin
matter that employers can face lawsuits related to bullying if the
harassment involved a victim's race, religion, sexual orientation or
disability. Claims can be made for harassment, infliction of
emotional distress and negligent supervision.
One voice mail that has surfaced from Incognito to Martin, who is
black, included a racial slur and other Dolphins players have said
use of the slur in the locker room was not out of the ordinary.
In addition, Volpe and Reiter said that Martin could claim that he
was essentially forced to leave the Dolphins because of workplace
harassment.
"Even if the Dolphins were unaware of Incognito's alleged behavior,
which may be the case, the organization could still face claims of
liability," they said.
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There have also been reports that Incognito was
told by coaches to "toughen up" Martin, which could show the
team did have knowledge about the harassment, the two lawyers
said.
Still, it's no slam-dunk for Martin.
For example, one allegation is that Martin forked over $15,000
for veteran Dolphins teammates to take a trip to Las Vegas that
he did not attend. That could be viewed in court as being a
willing participant and make a harassment lawsuit harder to
prove.
If, Jarvis said, "Martin seemed to be going along with the
conduct willingly, then Martin cannot now change his mind and
decide that he didn't want to be part of the culture."
For Incognito himself, the main issue would likely be his NFL
playing career. He too could file a grievance with the players
association over his suspension by the Dolphins, which could
eventually turn into outright dismissal from the team, and
eventually win back a job somewhere.
Tamara Lave, a law professor at the University of Miami, said
the current national focus on bullying and hazing in schools and
at the workplace would figure in Martin's favor should he take
legal action. Especially, she said, because he is a physically
imposing NFL player — 6-foot-5, 312 pounds — who is typically
perceived as having few weaknesses.
"The fact that you have a 300-pound man who feels so threatened
and uncomfortable that he leaves, that's an indication of how
serious it was," Lave said.
From the criminal standpoint, former prosecutor David S.
Weinstein said it's possible but not likely that Incognito could
be charged with extortion if he made threats to force Martin to
pay the $15,000 for the Vegas trip. Another option would be
written threats to do bodily harm, based on Incognito's texts to
Martin making threats about his mother.
"However, I don't really see the (state prosecutors) going after
Incognito, but I could be wrong," Weinstein said.
Florida does have an anti-hazing law, but Jarvis said it applies
only to educational institutions and not adult workplaces.
[Associated
Press; CURT ANDERSON, AP Legal Affairs Writer]
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