Feb 15 2014, 8:32am CST | by Forbes
A report was just released to establish facts and conclusions regarding the alleged racial and gay-bashing harassment by Miami Dolphin offensive linemen Richie Incognito against fellow offensive lineman Jonathan Martin. The report by outside counsel Ted Wells led to this comment:
“The society has changed. The NFL locker room has to change.”
The words were spoken by former NFL Pro Bowl player Darren Woodson on ESPN. Woodson publicly apologized for having endorsed the “Judas Code” as a player. That is defined as the twin “virtues” of (1) anything that happens in the locker room stays in the locker room and (2) if someone is harassing you, stand up to them and beat them back behind closed doors.
The Wells Report had three major findings:
• The harassment indeed existed
• The harassment came not only from Richie Incognito, but also two others including star center Mike Pouncey; and
• The harassment was “consistent” contrary to team policy.
The unresolved issues include (1) who is most to blame (NFL, team owners, player leaders, only the players cited). The easy answer is “all of the above.” The harder answer comes when the NFL commissioner decides the extent of the punishment for any of the above. It will not be the NFL. It may be a “time served” sentence for Incognito who missed the last half of the season with pay. That would be too light if the NFL is truly serious about the locker room culture change.
The bigger question is this: What is the NFL going to do to change the culture in the NFL locker room? The Wells report included over 100 interviews. One of the findings is that an assistant trainer laughed at some of the verbal abuse – racial and/or gay discrimination related. More importantly, among all those teammates, no one or no group of team leaders said, “This is unacceptable behavior.”
The essence of the dispute is whether the NFL is somehow exempt from the rules that apply to other private employers. Do the workplace rules that apply to a corporation that makes footballs apply to the entities that play with them? Legally, yes. If a victimized employee (Martin) sues the team and the NFL, there is enough legal authority to find liability. Martin has said he wants to play again in the League, so practically and politically speaking, he probably will not pursue that option.
The NFL knows it has potential liability, so we can expect to see the commissioner issue a major amendment to the code of conduct provisions. I expect the substance to include at least the following:
• Educational seminars and training so players are advised as to what constitutes bullying, harassment, replete with hypotheticals from NFL lawyers (including reminders “I didn’t know I was hurting him” as said by Incognito is no excuse);
• A requirement that all teams establish a confidential Hotline for players to talk directly with the NFL, so immediate action can be taken, and
• Accountability provisions so some form of punishment is clear from the League for offending players, and also any team that fails to act appropriately (“acts of omission”).
The beneficiaries of such a code provision go far beyond Jonathan Martin. One college player, Michael Sam, is likely to be drafted and has as already announced he is gay. If the NFL culture was one that harassed players like Martin, said to be gay, and the NFL and teams enforce a culture of tolerance, those openly gay players should benefit from that change. So perhaps something good will come from a bad situation. I’d like to think so.
The proof will be in whether players actually lose draft status or lose money for not embracing a tolerant culture. Will the NFL or teams actually invest money and expert resources behind workplace standards and training? In other words, is winning the only thing? If you have All-Pro skill, are you exempt from the workplace tolerance rules? If so, the old axiom rises to the top: “Don’t tell me what you value, show me your budget.”
Legally speaking there is yet another issue. The Wells Report was commissioned by the NFL, for the NFL. If Incognito believes factual errors in the report caused him damages, he can sue the NFL for defamation. If the Dolphins endorse the report, they too could be defendants. I suspect we are not done with this issue and its permutations.
Source: Forbes Business
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