By now most of us have heard about the story involving Miami Dolphin’s offensive linemen Richie Incognito and Jonathan Martin. In short, Martin left the team last week due to incidents of hazing and bullying by Incognito. According to multiple reports, Martin has turned over multiple text messages and voicemails sent to him by Incognito in which he uses racial slurs and threatens to kill Martin. The reports have most people defending Martin and questioning Incognito, but there are plenty of current and former NFL players and other personnel who are defending Incognito, while calling Martin soft. Although there is a tough-guy culture in the NFL and a tradition of hazing in almost all professional sports, the NFL and the Dolphins seem to be and should be navigating the issue carefully.
Fans love playing fantasy football and watching the NFL is apart of a relaxing Sunday. However, for players, coaches and others who work for the NFL, it’s a real job and real laws apply. The United States has laws against workplace harassment and discrimination and professional sports is no exception. Title VII of the Civil Rights Act of 1964 (“Title VII”) exists to prevent discrimination by employers on the basis of race, color, religion, sex or national origin. For a plaintiff to bring a suit under TItle VII, the employer must have fifteen or more employees. There are two types of work place harassment under Title VII, “quid pro quo” and “hostile work environment”. In this case it’s more likely that if Martin were to sue the Dolphins, it would be under hostile work environment.
In order for Martin to bring a suit under Title VII for a hostile work environment, he would have to prove five elements:
- He was subject to slurs, insults, jokes or other verbal comments or physical contact or intimidation of a racial nature;
- The conduct was unwelcome;
- The conduct was sufficiently severe or pervasive to alter the conditions of the his employment and create a racially abusive or hostile work environment;
- He perceived the work environment to be hostile or abusive; and
- A reasonable person in his circumstances would consider the environment to be abusive or hostile.
At first glance it seems like Martin would be able to hit each of the five elements very easily. In fact upon closer analysis it’s clear that he can. With text messages and voicemails from Incognito that he saved, Martin has made it easier for himself to prove element one. Incognito used racial slurs and threatened Martin in those messages which is evidence of racial discrimination. Elements two, three, and four may be met and demonstrated by Martin leaving the team last week. Element five would be in question only if a court took into account the culture of the NFL and required an NFL player as a “reasonable person”. Otherwise any other person would likely find this an abusive or hostile environment.
This is the reason Dolphins coach Joe Philbin came out, and in my opinion, used very careful language when talking about the situation. Specifically, Philbin made clear that he had no idea the extent of what was going on. The one mistake Martin made if the reports are accurate, is not going to the coaching staff prior to leaving the team. Although “not knowing” may not save the Dolphins in a lawsuit, it would have helped Martin (in a lawsuit and maybe in the moment) to talk to the coaching staff.
There are much larger issues at stake here including and it will be interesting to see how things pan out. It will also be interesting to see which side the NFL Players Association (NFLPA) lands on. The NFLPA’s responsibility is to the players and but when larger social issues are at stake they will have to pick a side at some point. Their initial statement of wanting a “fair investigation” for all involved reflects the uncertainty of their stance.