![\"dolphins\"](\"http:\/\/www.jlpp.org\/old_blog\/wp-content\/uploads\/2013\/11\/dolphins.jpg\")
<\/a>On Halloween 2013, a nightmare was born, one that could ultimately see two monstrous offensive lineman and monstrous entities do battle\u2014in the courtroom. On October 31st, news broke that Jonathan Martin, starting offensive tackle for the Miami Dolphins of the National Football League (\u201cNFL\u201d), suddenly left his team after \u201cO-line made fun of him and he snapped.\u201d<\/a>\n\nEvery controversy has a villain, and Dolphins offensive guard Richie Incognito fits the mold of a schoolyard bully. Incognito repeatedly \u201cmade fun\u201d of Martin with racial epithets and profanity; in voice mails from April, Incognito \u201creferred to Martin as a \u2018half n—– piece of s—.\u2019\u201d<\/a> This is not the first time Incognito has been accused of crossing the line with a fellow player; ESPN analyst Elizabeth Merrill dug into Incognito\u2019s troubled past<\/a>.\n\nIn contrast, Martin could easily be mistaken for a bullied \u201cnerd\u201d if one did not know Martin was a huge 6 feet 5 inch, 312 pound offensive lineman. Martin grew up in a family of Harvard graduates<\/a>, played at Stanford University, and has considered attending law school after football. In a New York Times article on the Martin-Incognito controversy, former Stanford lineman and teammate Andrew Philips described Martin as a \u201cphenomenal person\u201d<\/a> and that \u201che cares for people in the utmost way at all times.\u201d\n\nWhether fair or not, many might be wondering whether Martin is going to turn the tables on Incognito in court. Martin has retained the services of attorney David Cromwell, who has gone to the media with allegations<\/a> that Martin \u201cendured constant harassment, daily verbal attacks, and even a \u2018malicious physical attack\u2019 from teammates.\u201d NFL Commissioner Roger Goodell has recently appointed Ted Wells<\/a>, a prominent criminal defense lawyer and partner at the New York-based firm Paul, Weiss, Rifkind, Wharton & Garrison LLP, to \u201cdirect an independent investigation into issues of workplace conduct involving the Miami Dolphins.\u201d<\/a> There is little doubt that emotional distress would be a focal point in a potential lawsuit; Martin recently checked himself into a South Florida hospital for \u201cemotional distress.\u201d<\/a>\nNot Mano-a-Mano Between Martin and Incognito: Watch Out Dolphins (and the NFL)<\/i><\/p>\nThe law recognizes the intentional infliction of emotional distress (\u201cIIED\u201d) as a tort, a branch of the law commonly associated with personal-injury lawyers and \u201cambulance chasers.\u201d To win on an IIED claim, Martin would likely have to prove four elements<\/a>: (1) the defendant must act intentionally or recklessly; (2) the defendant\u2019s conduct must be extreme and outrageous; and (3) the conduct must be the cause (4) of severe emotional distress. Checking into a hospital for emotional distress and continuing to collect evidence of racially charged and profane texts and verbal abuse likely would support Martin\u2019s hypothetical IIED claim. However, there is potentially bigger fish to fry, with a corresponding larger payout, if Martin can sue Incognito personally, as well as the Dolphins franchise and the NFL itself.\n\nTed Wells is being paid not just to talk to Incognito, Martin, and other players to hear the facts, but perhaps more importantly to sit down with the coaching staff and figure out whether Incognito and other players were acting on their own accord, or at the behest of Dolphins Head Coach Joe Philbin as part of a program to \u201ctoughen up\u201d<\/a> Martin. The legal concept of respondeat superior<\/a><\/i>, also known as vicarious liability, allows an injured party to hold the employer legally responsible for the wrongful acts of an employee or agent if such acts occur within the scope of employment<\/i>.\n\nHere, the Dolphins franchise and the NFL could be liable if Martin can prove that Incognito and others were harassing and abusing Martin at the coaches\u2019 behest and that the coaches\u2014and management\u2014refused to or should have known to intervene. Notably, Incognito did not respond when asked about whether he was \u201ctaking orders from the coaching staff\u201d<\/a> during a recent interview with Jay Glazer after <\/i>Commissioner Goodell\u2019s appointment of Ted Well. But, we\u2019re all accustomed to hearing that a massive entity such as the NFL has some kind of liability shield built into their contracts with employees.\n Technical Difficulties: Please Stand By as We Try to Figure Out the CBA<\/i><\/p>\nSearch for the terms \u201cemotional,\u201d \u201cdistress,\u201d and \u201cbullying\u201d in the 2011 Collective Bargaining Agreement<\/a> (\u201cCBA\u201d) negotiated between the NFL and NFLPA and you get zero hits. The CBA, however, has a catch-all provision in Article 43<\/a>, covering \u201cnon-injury grievances.\u201d If Martin does file a lawsuit, expect to hear about Article 43 early and often.\n\nArticle 43 covers \u201cany [grievance] arising after execution of [the CBA] and involving the interpretation of, application of, or compliance with, any provision of [the CBA] . . . \u201d The repeated use of \u201cany\u201d in the section one definition of Article 43 strongly implies its purpose as that catch-all provision for any dispute not explicitly covered in the CBA. Article 43 requires that a grievance be initiated within fifty <\/i>days \u201cfrom the date of the occurrence\u201d or \u201cthe date on which the facts of the matter became known or reasonably should have been known to the party initiating the grievance, whichever is later.\u201d The clock started on October 30 or October 31, when various sources broke the news that Martin was \u201ctaking a leave of absence\u201d<\/a> from the Dolphins.\n\nThe responding party or parties\u2014depending on whether Martin targets only Incognito\u2014has ten days to file answers to the grievance. At that point, if there is no settlement after the filing of answers, the grievance ultimately may come before a panel of arbitrators who have to be approved by the NFLPA and Management Council. The fact that both Martin and Incognito are players who belong to the NFLPA could be an elephant in the room; whose side would the NFLPA take in such a dispute between its own members?\n\nA crucial side-story is whether the Dolphins keep Martin on the team and whether they keep him under contract. Article 44 covers injury grievances between a player and a franchise<\/i>, providing a route to extending liability beyond Incognito himself.\n\nA natural question is: why is an injury grievance being discussed in the first place? No one tore Martin\u2019s ACL or physically injured him, right? The fact that the CBA does not explicitly cover emotional distress could open a backdoor for an Article 44 injury claim. Martin could claim that the actions of Incognito so traumatized him that he became physically unable to play\u2014the fact that he left the team and checked into a hospital<\/a> makes that claim plausible. However, that claim is barred if Martin is still under contract; Article 44 clearly provides that an injury grievance is a claim filed when a player\u2019s \u201cNFL Player Contract . . . was terminated<\/i> by a Club.\u201d The Dolphins may simply have to eat the rest of Martin\u2019s contract and keep him on the team even if he stays away just to deter any possibility of an Article 44 claim.\n Where Does the Buck Stop?<\/i><\/p>\nThere is a chance that Martin may be able to go to court regardless of the CBA arbitration clauses. The CBA does not contain the terms of emotional distress and bullying, and Florida courts recognize<\/a> the tort of the intentional infliction of emotional distress. However, the courts have been reluctant to step in where there is a clear grievance arbitration process in place; ask Alex Rodriguez<\/a>.\n\nIt is very likely that any legal dispute raised by Martin will have to go before arbitrators under the CBA. The appointment of Ted Wells and Incognito\u2019s refusal to answer a question about orders from higher-ups signal the beginning of the defense plan for the Dolphins and the NFL at large. Whether Martin decides to pursue a legal remedy and how that dispute is resolved will go a long way in determining how those outside the locker rooms feel about the use of racial epithets and hazing in the NFL and beyond.","protected":false},"excerpt":{"rendered":" Martin Zhou discusses the Jonathan Martin-Richie Incognito controversy and how Martin will have a tough\u2014 but not impossible\u2014case if he demands a day in court. <\/p>\n","protected":false},"author":1,"featured_media":1347,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[25],"tags":[885,1026,1095,1319,1423,1512],"class_list":["post-1343","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-policycontributor-blogs","tag-jonathan-martin","tag-miami-dolphins","tag-nfl","tag-richie-incognito","tag-sports-law","tag-ted-wells"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/1343","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=1343"}],"version-history":[{"count":0,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/1343\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media\/1347"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=1343"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=1343"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=1343"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}