New reports are emerging that Richie Incognito was told by his coaches to toughen Martin up. I’m not sure whether Incognito has spoken to an attorney or received legal advice from anyone but if he’s responsible for this information coming out, it was a good move on his part. In the case that Martin were ever to go after Incognito legally, Incognito could claim respondeat superior which could limit his liability under certain circumstances. Respondeat superior is a doctrine under which an employer is liable for the actions of an employee, if the actions were committed within the scope of employment.
To limit his liability if a suit is brought against him by Martin, Incognito could claim the he was only following the directions of his superiors (the coaches) when he left the reported messages for Martin. One problem Incognito could run into under this doctrine is whether his actions were within the scope of his employment with the Dolphins. Courts generally weigh a number of factors when deciding whether an employee was acting within the scope of his employment. Three common factors that are considered are:
- Whether the act was committed within the time and space limits of the employer
- Whether the offense was incidental to, or of the same general nature as, the responsibilities the employee is authorized to perform
- Whether the employee was motivated to any degree to benefit the employer by committing the act
While so far, the only evidence of hazing that we know of are texts and voicemails, hazing does not occur in dark corners and the incidents are generally not isolated; they happen during practice, in the locker room and at other times when other people are present. Also, up to this point, it doesn’t look like Incognito was trying to hide his behavior so it’s likely that teammates, coaches and other team personnel witnessed more acts by Incognito against Martin. The next element may be challenging to prove as well. The Dolphins would argue that when coaches told Incognito to toughen Martin up, they did not condone the use of racial slurs and threats. They would also argue that they wanted Incognito to do so on the field within the practice environment. However, an employer is generally not released of liability just because an employee did something he should not do. The third element may not be difficult to prove. Incognito and Martin were both apart of the offensive line and toughening Martin up, would have helped not only Incognito but the team as well.
Alot of this analysis sounds very ‘nitpicky’ in the context of sports, however even if the legal analysis and jargon is removed, Incognito’s actions still crossed the line. In the past few days, a number of current and professional athletes have been making the rounds on national TV and radio shows. Most of their stories revealed that hazing was the norm on their teams but it was mostly in good fun. Funny haircuts, carrying bags, and paying for dinners are some acts that were mentioned, none of which raise red flags. Incognito went too far and he and the Dolphins may end up paying the price.