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Hazing vs. Harassment: Legal Options In The Jonathan Martin Situation

For just over the last week, the circus that has become the Miami Dolphins has been on a crazy roller coaster ride.

Facts of the situation have been unclear. And to this day, the facts of this situation are still unclear, as different information is becoming available everyday. However, there is a current timeline that helps draw out what has happened thus far.

The Jonathan Martin Hazing Timeline

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They may look like pals here, but Incognito and Martin are far from it today.

On October 30, 2013, Jonathan Martin left the Dolphins. On October 31, 2013, the Associated Press reported that Martin left the team to address emotional issues that he was having.

November 2, 2013 revealed details that Martin had been bullied and teammate Richie Incognito’s name had come up as a player that had a large role in the bullying. The next day, the Miami Dolphins denied any allegations of bullying going on within the team, and stated if there was bullying, nothing was presented to the organization.

The Dolphins denial caused Martin and his representatives to allege player misconduct against the Dolphins. On November 4, the Dolphins suspended Incognito for conduct detrimental to the team, while an internal investigation began.

The ensuing days lead to the NFL hiring private attorney Ted Wells to investigate this chaotic situation in Miami, while the NFL Player’s Association monitors the investigation closely so that it can properly and fairly represent both Martin and Incognito under the Collective Bargaining Agreement (CBA). Currently, we are waiting to hear what facts come from the investigation.

There are several allegations that have shown up in media reports. These allegations include extortion claims for a trip to Las Vegas, spending upwards of $30,00 on team dinners and demeaning and threatening voicemails. It is no secret that NFL players participate in the hazing of rookies within the organization. This is a tradition, a right of passage, a team bonding ritual that at times blurs the line between right and wrong.

However, it is an accepted practice within each locker room, although it is not likely accepted to the extent it has been in Miami.

Through his allegations, Jonathan Martin may have legal claims against Richie Incognito and the Miami Dolphins organization. Although the exact facts of this situation have not been revealed, I want to list some of the potential claims that Martin may assert.

Martin’s Claims Under The CBA Between The NFL and NFLPA

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Under the CBA, if a player has a non-injury grievance (i.e., player misconduct), that player may file a claim under Article 43 of the CBA.

Through this process, instead of going to court, the team and the player will appear in front of a panel of arbitrators. The arbitrators will hear the evidence presented by each side, including witnesses or discovery documents, and then decide based on the evidence its decision.

A player may file a grievance against his team on the grounds of providing an unsafe workplace. Here, Martin may claim that the Miami Dolphins organization was aware of the alleged harassment that took place.

Although there has yet to be an official complaint filed with the NFLPA in regards to this claim, Martin and his representatives have 50 days from the date upon which the grievance is based, or within 50 days from the date on which the facts of the matter became known or reasonably should have been known. In this case, it would be the October 30, 2013 date (when Martin left the team), or whenever the organization knew of the situation.

The NFLPA has a duty to represent all players in the NFL, which in this case is difficult. If Richie Incognito decides to appeal his suspension by the Dolphins, the NFLPA will have to conduct its own investigation into the matter. Depending on the facts that come from the investigation, Martin or Incognito may or may not have a viable claim under the CBA.

Jonathan Martin’s Individual Claims

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There are certain claims under Florida state law that Jonathan Martin may also look into as this situation unravels.

Intentional Infliction of Emotional Distress Claim Against Incognito

Under Florida law, an individual may sue another person in civil court for intentional infliction of emotional distress. To prove intentional infliction of emotion distress the party alleging the claim must prove four things:

  1. The wrongdoer’s conduct was intentional or reckless;
  2. The conduct was outrageous, that is, as to go beyond all bounds of decency, and to be regarded as odious and utterly intolerable in a civilized community;
  3. The conduct caused emotional distress; and
  4. The emotional distress was severe.

According to the facts that have been laid out so far, Jonathan Martin may have a claim against Richie Incognito for the emotional distress Martin had reportedly suffered.

Under the first element, it can be said that Incognito’s conduct was intentional or reckless. Incognito used racial epithets and profane language towards Martin on numerous occasions. Whether or not the racial slurs were jokes, as some teammates have said in defense of Incognito, it is clear that Incognito intentionally used these racial epithets in an attempt to “toughen up” Jonathan Martin.

The second element of intentional infliction of emotion distress may also prove to be found here. It is no question that the use of racial slurs toward African Americans is an outrageous conduct that should not be tolerated in a civilized community. However, Incognito’s outrageous conduct goes beyond the racial epithets that Incognito consistently called Martin.

In the voicemail left for Jonathan Martin, Richie Incognito says, “I’ll kill you” at the end of the message. Over the last few months where Aaron Hernandez has been arrested and charged with the murder of a semi-pro football player, it would seem like a wake up call for NFL players not to threaten other players with death, even if it is a joke. However, that message was not clear to Incognito. And when against a jury, his remarks may be seen as outrageous and intolerable within our community.

The third and forth elements of this cause of action are the hardest to prove by the preponderance of the evidence. After Jonathan Martin left the Miami Dolphins because of the alleged bullying, he checked himself into a hospital to be treated for emotional distress. A jury could find that if there was bullying going on within the Miami Dolphins, it caused the emotional distress that Jonathan Martin checked into the hospital for.

However, it will be hard to determine how severe the emotional distress was at the time Martin left the team. Expert mental health doctors, or the treating physician of Martin will provide this evidence that either discredits or supports his emotional state at the time he checked into the hospital.

Vicarious Liability Against Dolphins

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Jonathan Martin may also have a claim against the Dolphins as an employer that is liable for harassment. An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successfully higher) authority over the employee.

Although this claim may be raised, Martin will have to overcome a lot to win.

First off, this claim will only survive if Richie Incognito is found to be a supervisor with immediate authority over Martin. At first glance, it seems that Incognito is clearly not a supervisor for the Miami Dolphins, so this claim would automatically fail. However, it has been revealed that Incognito was voted by his teammates to the Dolphins’ leadership council.

An argument can be made that since Incognito was on the leadership council, he had immediate authority over players within the locker room, including Jonathan Martin. This immediate authority can also be shown when Incognito was asked by several coaches on the team to “toughen up” Martin.

For an employee to claim that an employer is liability for harassment, there has to be a tangible employment action taken. A tangible employment action is an actual change that has an actual adverse effect on the job or working conditions (i.e., firing, hiring, demotion, or undesirable reassignment). By leaving the team, Jonathan Martin’s actions may be considered a constructive discharge, which is not a legitimate tangible employment action.

A defense to rebut the allegations of harassment is available to the Dolphins in this situation that could make it harder for Martin to prove this claim. When no tangible employment action is taken, an employer may raise an affirmative defense to liability or damages, which are:

  1. That the employer exercised reasonable care to prevent and correct and promptly any harassing behavior; and 
  2. That the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer, or to avoid harm otherwise.

The Dolphins can make the argument that they have a policy implemented within the organization that allows players to come forward anonymously to voice any concerns, and this policy is reasonably expressed to all of the players. In turn, the Dolphins can state that Martin failed to utilize this policy and he left unannounced and unknown to any of the coaches (which is alleged). Therefore, it would be hard for Martin to claim that the Dolphins failed to protect him, if they were unaware of any harm happening to him.

A Hazing Society That Needs To Change


This situation is indeed strange and unprecedented for professional sports, and it will continue to stay strange until more facts come out within the next weeks or months.

Whether you want to label this situation bullying, hazing or harassment, it doesn’t matter. After this situation is resolved, it is clear that many changes need to happen, not only in the NFL locker room, but in all sport locker rooms.

Hopefully this situation will make us rethink how we treat others and how we want to be treated, in or out of our professional fields, in order to make a positive change in this ever-confusing society.

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