The bullying scandal at the Miami Dolphins is taking a dangerous turn for the franchise. A new report states that coaches told suspended lineman Richie Incognito to “toughen up” teammate Johnathan Martin after the latter player missed part of the team’s offseason workout program. Since Incognito already had a reputation for violence and dirty play, such an order would raise a serious question of management knowledge and implied approval of the treatment of Martin. It is a football version of the premise of a Code Red in “A Few Good Men.”
The South Florida Sun Sentinel is reporting that Incognito was encouraged by Dolphins coaches to “get [Martin] into the fold” after he missed OTA practices. While not required, OTAs are a sign of commitment to the team. There is also the question of the abusive rule that rookies have to pay for more senior players for expensive dinners and trips. One such bill came to $55,000. I have only heard of such a tradition in the mafia for newly “made men.” It is hard to believe that the coaches were not aware of such a practice.
The voicemail by Incognito could be defended as “trash talking” meant to toughen up a more junior player:
“Hey, wassup, you half n—– piece of s—. I saw you on Twitter, you been training 10 weeks. [I want to] s— in your f—ing mouth. [I'm going to] slap your f—ing mouth. [I'm going to] slap your real mother across the face [laughter]. F— you, you’re still a rookie. I’ll kill you.”
Incognito’s teammates have come to his defense and said that Martin was laughing about the voicemail after it was sent and that Incognito was viewed as his best friend on the team.
The suspension of Incognito demonstrates that such hazing will not be tolerated. However, if coaches gave their implied support for such pressure, shouldn’t they face the same fate?
Clearly, if the account is true, the coaches could argue that it is common to ask more senior players to mentor younger players. Incognito would appear a curious choice given his history of fighting with players and coaches and prior arrests.
That raises the question of whether Martin could sue not only Incognito for intentional infliction of emotional distress but sue the Dolphins for negligence as well as intentional or negligent infliction. It would raise a question of respondeat superior in the use of Incognito. Even if such vicarious liability is not well-founded, a straight negligence claim could be made. The decision of the team to suspend Incognito could be used as a defense as a prompt and strong response to the allegation.
The analogy to a code red could make for an interesting trial.
If Dolphin coach Joe Philbin is called to testify, I have prepared the following statement:
NFL Commissioner, you can’t handle the truth! …We play in a game that has lines, and those lines have to be guarded by men with guts. Who’s gonna do it? You? You, Lt. Weinburg? I have a greater responsibility than you could possibly fathom. You weep for Martin, and you curse the Dolphins. You have that luxury. You have the luxury of not knowing what I know. That Martin’s withdrawal, while tragic, probably saved games. And my existence, while grotesque and incomprehensible to you, saves games. You don’t want the truth because deep down in places you don’t talk about at parties, you want me on that field, you need me on that field. We use words like honor, code, loyalty. We use these words as the backbone of a life spent defending something. You use them as a punchline. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very entertainment that I provide, and then questions the manner in which I provide it. I would rather you just said thank you, and went on your way. Otherwise, I suggest you pick up a helmet and stand a line. Either way, I don’t give a damn what you think you are entitled to.
Of course some would say that as a Bears fan, I am only giving legal advice under an obvious conflict of interest. However, if delivered properly, who knows?