http://www.businessweek.com/articles/2013-11-07/can-jonathan-martin-sue-the-miami-dolphins-for-bullying

Legal Issues

Can Jonathan Martin Sue the Miami Dolphins for Bullying?


Tackle Jonathan Martin, right, during a Miami Dolphins practice in Davie, Fla., on July 23

Photograph by Joe Rimkus Jr./Miami Herald/MCT via Getty Images

Tackle Jonathan Martin, right, during a Miami Dolphins practice in Davie, Fla., on July 23

Jonathan Martin, a 300-pound offensive tackle for the Miami Dolphins, left the team complaining he had been subjected to racially tinged bullying by an equally hefty fellow lineman. Since this is America, we naturally ask: Does Martin have a lawsuit?

It’s America, and a lawyer would happily take his case. Martin is African-American. His alleged afflicter, Richie Incognito, reportedly spiced abusive voice mail and texts with racially offensive references. Those are the beginnings of a plausible case of racial harassment. Many plaintiffs’ lawyers are not averse to the attention guaranteed to accompany a lawsuit related to this already-radioactive episode. From a legal perspective, it would not, however, be a slam dunk (or easy touchdown, if we want to keep our sports metaphors straight).

It matters what other players, coaches, and executives knew and did. To mount a serious allegation of a “hostile work environment,” a plaintiff typically needs to demonstrate that abuse permeates the workplace and prevents the victim from doing his job. If co-workers and managers join in the abuse or openly tolerate it, the plaintiff is much further down the road toward a meaningful claim. In contrast, a complaint that a single co-worker, no matter how obnoxious, acted in a bullying manner probably doesn’t constitute a sufficient basis for a suit.

There are other theories, including intentional infliction of emotional distress. A jury might hold the Dolphins vicariously liable under this doctrine, but only if Martin could show that he suffered extreme distress and that the misconduct was outrageous. Incognito has a reputation as a nasty guy—on and off the field. But in the context of a brutal game in which insults and injuries are common, does Incognito’s behavior stand out as especially egregious? Maybe yes, maybe no. The hazing of rookies—and especially players who attended academically elite universities like Stanford, Martin’s alma mater—is apparently routine in the NFL. One couldn’t base a lawsuit on the simple assertion that Incognito is a jerk.

It would never go to a jury anyway. If Martin sued, the Dolphins would settle. The team doesn’t want to prolong the bad PR and risk fan disillusionment, let alone the wrath of Al Sharpton on MSNBC. If Martin is smart, though, he won’t sue. If he wants to stay in football, he should just demand a trade and get back to business. He can make a statement against bullying and racism by … making a statement against bullying and racism. Why get entangled in legalities and make attenuated claims about how his entire life was ruined by one (or two or three) obnoxious teammate(s)? It’s not as if Martin is a 98-pound weakling who feared for his physical well-being. Right-thinking fans have rallied to Martin’s side. He’s already won in the court of public opinion.

Barrett_190
Barrett is an assistant managing editor and senior writer at Bloomberg Businessweek. His new book, Law of the Jungle, which tells the story of the Chevron oil pollution case in Ecuador, will be published by Crown in September 2014.

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