Jonathan Martin could sue Dolphins under employment law

Nov 14, 2013

MIAMI (AP) — Jonathan Martin could sue the Miami Dolphins for big money under a variety of workplace laws that make employers liable for bullying, harassment and discrimination — even if the team’s hierarchy didn’t know about it, according to several legal experts.

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.

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.

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