Of the various dark clouds currently hovering over the Dolphins, the most expensive one comes from the possibility of litigation from tackle Jonathan Martin.
And despite the existence of a Collective Bargaining Agreement that requires player complaints to be handled through private arbitration, Martin would argue that the CBA fails to clearly waive his own ability to file a discrimination case under state or federal law.
Based on a review of the CBA, which fails to contain a clear and unmistakable waiver of state or federal discrimination rights, it’s clear that Martin’s lawyers would argue that a suit can be pursued, and that the lawyers for the league and the team would argue the opposite.
The theory would be that Richie Incognito’s alleged harassment created a hostile work environment against Martin based on his race or other legally protected characteristics. Based on Wednesday’s comments from players like Brian Hartline and Tyson Clabo, the lawsuit could include a claim for retaliation based on Martin’s decision to complain about the harassment.
Perhaps that’s why the Dolphins so quickly suspended Incognito. After hearing the “N” word on the voice message, it becomes much more difficult to defend a discrimination lawsuit.
The availability of a lawsuit also will strengthen suspicions (correct or incorrect) that Martin contrived a situation where he’d be paid to play football without playing football by secretly harvesting evidence of discrimination and then waiting for the right moment to launch the attack. Others will suspect (correctly or incorrectly) that Martin didn’t want to do anything about the situation other than get out of it, and that people close to him (such as parents who are both lawyers) overreacted upon hearing the voice message, insisting that Martin take action.
And perhaps for the same reason that Martin didn’t stand up to Incognito, Martin didn’t stand up to those who were pushing him to make an official complaint of harassment.
If/when a lawsuit is filed, the lawyers represented those who are sued will explore every possible defense and angle and motivation. For now, the point is that Martin most likely would be able to pursue litigation -- and it would be naive to assume that Martin’s potential legal rights aren’t influencing every decision made by the league and the team.