Miami Dolphins

Lawsuit possible in Miami Dolphins bullying incident

The NFL’s nascent investigation into the Richie Incognito-Jonathan Martin investigation might be just the start of the Miami Dolphins’ legal headaches.

Some believe Martin is on solid footing for a lawsuit against the organization – should he decide to go that route.

Martin, who alleges long-running abuse at the hands of Incognito and has an audio recording that appears to back up his claim, could sue the Dolphins on the grounds of intentional infliction of emotional distress. That’s according to Darren Heitner, a Miami-based sports and entertainment attorney.

The question is: Does Martin want to?

“My expectation is that the Dolphins will be able to avoid any litigation,” Heitner said. “I don’t think it would be worth Jonathan Martin’s while to file a lawsuit against the Dolphins.

“Not necessarily because he would stand without any legal claim, but mostly because of the fear of retribution, whether it’s fair or not.”

Heitner believes that, if Martin would sue the Dolphins, he would become toxic to the other 31 teams in the league, potentially imperiling his chances of finding another job.

However, if Martin believes he is (or wants to be) done with football, a lawsuit could become more attractive, Heitner said.

To win a claim based on intentional infliction of emotional distress, Martin would have to prove that there was a reckless or intentional effort to cause him extreme, severe distress and that the conduct was outrageous.

Why might the Dolphins be on the hook for Incognito’s behavior? Because of the doctrine of vicarious liability, Heitner said. That states that an employer is held liable for certain conduct of those under its control.

Furthermore, Martin would have to show that Incognito’s actions were a foreseeable and well-known hazard, which Heitner said he may be able to prove, based on Incognito’s past, and if the coaches understood the conduct was taking place.

As explosive as the details, this probably isn’t a simple workplace harassment case, said local employment attorney Gary Costales.

The reason: It’s not against the law to be or employ a jerk. There is no workplace bullying law on the books. The victim of abuse has to also prove that he or she was harassed because they were a member of a protected group.

Those groups are based on age, race, sex, color, religion, national origin and disability. Martin could argue that he was targeted because he is black (Incognito is caught on tape using a racial slur) or because of his age (Incognito saying that he still views Martin as a rookie).

If Martin can prove he was harassed because of his race – and Incognito’s vile voice messages might be the proof he needs, said employment attorney Lynne Anderson – he also has to show that it was unwelcome behavior.

However, an employer generally will not be held liable for co-worker harassment if the employer had a complaint policy about such claims, the worker did not complain and the employer did not know of the harassment.

And even if Martin never directly brought his concerns to the organization, as ESPN reported was the case Tuesday, it does not absolve the coaching staff.

If the coaches were aware that this kind of conduct was going on among the team, that by itself would be enough to give rise to a complaint, said Anderson, an attorney with multi-state firm Drinker, Biddle and Reath, LLP.

“The law does not recognize a stick-your-head-in-the-sand defense for unlawful harassment,” Anderson added.

Furthermore, the conduct must be “subjectively abusive to the person affected and is objectively severe and pervasive enough to create a work environment that a reasonable person would find hostile or abusive,” according to the Labor Department.

Frequency and severity of conduct are also determining factors, as are whether the conduct unreasonably interfered with work performance and the effect on the employee’s psychological well-being.

Possibly strengthening Martin’s case: The Dolphins made Incognito a member of their leadership council before the season, which in a way empowered him to police the locker room.

Martin abruptly left the team after a lunch-room prank gone wrong on Oct. 28. He hasn’t returned, and is reportedly undergoing counseling in California for emotional issues.

Should he pursue a lawsuit, Martin won’t lack for legal advice. He’s the son of two attorneys. And even if he doesn’t, the saga is an indictment on how the Dolphins run their organization, Costales said.

“While Incognito’s conduct does not fall neatly into one law or another, his conduct was not good for the team and would not be good for any business,” he added.

In some legal circles Tuesday, there was yet another question: Might Incognito be subject to Florida’s cyberstalking law?

The answer: Not at this point. Fort Lauderdale and Davie police, along with the Broward Sheriff’s Office, said that as of Tuesday afternoon, they had not launched an inquiry into the situation.

“At this time, the Davie Police Department has not received an allegation of any crime with regards to the ongoing situation within the Dolphins’ organization,” said Davie Police Captain Dale Engle. “If and when we do, we will investigate any allegation and present our investigation to the state for prosecution.”

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