Monday, November 18, 2013

Some thoughts on the NFL and harassment in the workplace

It's an unfortunate truth that pro sports management often seems to operate as if athletic teams were somehow separate and apart from the rest of the American employment world.  Specifically, many professional sports management personnel, especially coaches, are blissfully unaware of the legal standards that apply to their players, other than those covered by the collective bargaining agreement. There has been some progress--many teams had no concept or even awareness that workers compensation laws applied to on-the-field football injuries for their players. Thankfully, that situation is pretty much a thing of the past, but you still encounter circumstances today in which conduct that is basically unthinkable in a normal workplace is either ignored or even encouraged in a football or basketball locker room.

Thus the Richie Incognito/Jonathan Martin situation with the Miami Dolphins. I want to first talk about the legal implications of the situation, and then a more general assessment of what reportedly happened, and what it means for professional sports in general.

Martin, an offensive tackle, left the Dolphins facility without notice to management, allegedly because he was being harassed by his teammates, and one teammate in particular, Richie Incognito, who played next to Martin on the offensive line. Prior to leaving, Martin tried to raise his concerns about harassment with team management, either personally, or through his agent. Martin apparently never talked to any of his teammates about harassment, nor did he raise it with his immediate supervisors, the coaches. Martin's attorney has produced texts and a voicemail message containing at least one racial epithet, and threatening language against Martin, and his sister.

Over the last several weeks, Incognito's version of events came out, either through statements by Incognito himself, or by statements from his teammates. These statements do not paint a picture of harassment, but rather seem to indicate that Incognito and Martin were fairly close, at least in terms of their public associations, and that the racial comments and personal threats, which Martin acknowledged to other players in the locker room and actually laughed about, were part of an ongoing joking or lighthearted taunting that permeated the locker room.

From a purely workplace law perspective, I'm guessing that Martin will have a very difficult time establishing any type of employment discrimination or employment harassment. The language used in the e-mails and voicemails is certainly awful from an objective standpoint-dropping the N-bomb on a black teammate, threatening to sexually assault his sister, or inflict bodily harm on him are not the type of activities that make the HR "Best Practices Handbook".   But all harassment cases have a subjective element as well, in that the conduct must be "unwelcome" to the victim. And that's where Martin's problems begin, because it seems readily apparent that he was at least acquiescing, if not participating in the harassment Olympics that took place in the Miami locker room.  Based on comments to date, in fact, I fully expect every black member of the Dolphins to stand up and testify that they were not offended by Incognito, and that Martin wasn't either. So much for the racial harassment claim.  Incognito may have been bullying Martin and being mean to him, but unless he was doing it because Martin was black (or because of some other protected factor we are unaware of), it simply isn't actionable.

There are some allegations that Martin or his agent complained to Dolphin management about this treatment. When that happened, and what happened after the alleged complaints, could form the basis for a viable retaliation claim, if Martin can show that club management not only knew about his complaints, but acted in response to them. Again, I think this will be a very difficult thing to prove. There is some evidence that the coaching staff wanted Martin's teammates to interact with him in a way that would draw him out, or at least get him more emotionally committed to the team. But that's a far cry from that same coaching staff being aware that Martin had complained that he was being racially harassed (if Martin even did that) and responded by having his teammates berate and humiliate him.  And if the Dolphins can show that the coaches were directing Martin's teammates to toughen Martin up before Martin complained, then this claim gets even weaker.

But this case has some wider implications for all pro sports, depending on how the NFL and other sports teams react to it.  Locker rooms are not your typical workplaces, and there are some rules that work just fine in a white collar /office environment that simply don't in a locker room.  This isn't surprising, or even that unusual.  Courts have routinely recognized that all-male working environments, or even jobs requiring difficult physical labor, are normally associated with bad language, obscene rituals, and general juvenile conduct.  It was not coincidental that the Supreme Court said that Title VII is not a civility code in reference to a case involving people working on an oil rig.

But being merely legal is not enough.  These teams are involved in the entertainment business, and the public perception of their organizations is a key element in their profitability.  Public sentiment for organizations perceived as being full of bullies and bad guys is hard to sustain.  So some teams have immediately reacted by banning any conduct that might be considered hazing, and I think more will follow suit.  But I also think that no matter what clubs try to do, there's going to be some type of harassment of new players, and low level taunting/torment of teammates, just because that's been part of sports and elite organizations since the Greeks organized the Olympics two thousand years ago.  Moreover, it's hard to isolate the intimidation that is part of football (it's part of all sports, actually) to just the opponent on the playing field.

Will the public understand?  I suspect it will, although I think this case has been badly reported by the mainstream sports media, who, after all, labor in environments where this type of conduct is relatively foreign, and certainly actionable.  As far as I can tell, the only really accurate discussions of what happens in a typical locker room are coming from former players, and, to a certain extent, some of the coaches who now work in the broadcast booth.  I think as both sides of the story get out into the press, we will see that what happened with Martin was not an isolated issue of bullying/racism, but rather conduct that is typical in locker rooms from high school forward, and that Martin at least seemed to go along with what was happening to him.  That might be enough to work an organizational change for some teams with respect to player conduct, but I doubt that it will sustain any type of legal challenge.

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