Corporate America has been watching the Miami Dolphins suffer publicly through what many companies have already endured—a charge of harassment creating a hostile work environment. Now the National Football League has hired noted white-collar defense attorney Theodore (Ted) Wells Jr. to investigate the allegations in Miami.
“Talk about overkill,” remarked labor lawyer J. Freedley Hunsicker Jr. when he heard Thursday about the Wells hiring. “He’s a criminal lawyer!” Hunsicker, senior counsel in the Philadelphia office of Fisher & Phillips, has previously represented the National Collegiate Athletic Association, a pro sports team and various athletes in employment disputes.
Overkill or not, the predicament is still creating embarrassing legal problems for the Dolphins and the NFL.
“These situations serve as stark reminder that high-impact training on and awareness of bullying, hazing and harassment is crucial in all work environments, whether you have a locker room or board room—or both,” said Philippe Weiss, managing director of Seyfarth Shaw’s compliance services and training unit.
The Dolphins’ tale began when Jonathan Martin, an offensive tackle, left the team’s complex last week and briefly checked himself into a hospital for emotional distress. He remains on leave from the team.
Martin’s a pro athlete, but he comes from a legal world. His father, C. Augustus Martin, has both a law degree and a Ph.D., and is an author, law professor and acting associate dean at California State University, Dominguez Hills. Martin’s mother, Jane Howard-Martin, is an employment lawyer and in-house counsel at Toyota Motor Sales, U.S.A. Inc. in Torrance.
Martin has claimed that another player, Richie Incognito, directed threats and racial slurs at him, and some comments were captured on a voicemail. Sunday the Dolphins placed Incognito on an indefinite suspension for conduct detrimental to the team, and several news reports suggested that management does not want him back on the field.
“Under league policy, all employees have the right to a workplace free of any form of harassment,” NFL commissioner Roger Goodell said in appointing Wells. “We are fully committed to an appropriate working environment for all NFL personnel.”
Wells, a senior partner in the New York office of Paul, Weiss, Rifkind, Wharton & Garrison is well known for his criminal defense of politicians like Eliot Spitzer and Lewis “Scooter” Libby. He also investigated a recent Syracuse basketball team sexual harassment case as well as the NBA players union dispute over its leadership.
Experts said Wells will try to answer several key questions, including:
- Did the behavior directed at Martin reach the level of frequency and intensity that creates a hostile work environment?
- Did the behavior violate a protected class, such as gender, religion or race? Martin is African-American; Incognito is white.
- Did one or more coaches know of the harassment or even encourage it?
“There is a general perception in the marketplace that bullying or harassment is unlawful. It’s not,” Hunsicker noted. “It has to be connected to some protected characteristic, such as race.”
The labor lawyer added, “He doesn’t necessarily have a cause of action for getting his feelings hurt. There is no claim necessarily for one bad word, or one incident. You have to look at the pervasiveness, hostility and intensity.”
Still, Hunsicker concedes, “The law doesn’t exempt tough offensive linemen from the civil rights law.”
There is a lesson for general counsel and their companies in the Dolphins’ distress. “General counsel should make sure they have a harassment policy in place, and check it to make sure it is broad enough,” Hunsicker said, adding that the company needs to provide a “clear direction to an employee where he should go if he is suffering” from harassment.
Seyfarth Shaw’s Weiss said he has received “a lot of calls” from organizations that see what’s happening and want to rethink their own policies. “You don’t wait until conduct becomes illegal to investigate and stop it,” Weiss said.
Since bullying is not illegal, he said, “They are taking another look at conduct that they can’t describe well, and they want to clarify it. You need to involve your employees when you do that … to come to a consensus that certain conduct is unacceptable.”
He explained that the key for GCs should be on training. First, he said, a company must “create and deliver core messages on the impacts of bullying or hazing that participants cannot ignore.”
To do that, he suggests “imprinting simple, powerful and effective responses to the intimidating or demeaning conduct of others—whether they are pro athletes or co-workers.
“These are training sessions where the stakes are so high that relying on a PowerPoint, or running and discussing a video are just not going to cut it,” Weiss continued. “Getting buy-in around a new, common language of respect is paramount.”
Finally Hunsicker brought up another headache for the Dolphins’ legal team—Incognito has a labor contract. And many players are rallying around him to deny there was any harassment beyond normal horseplay, and they are questioning his suspension.
“Now he has a grievance, too,” Hunsicker suggested.
