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Despite CBA, Martin would have the ability to sue


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.

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24 Responses to “Despite CBA, Martin would have the ability to sue”
  1. annapterp says: Nov 7, 2013 9:41 AM

    If this thing becomes a lawsuit then we’ll all understand Martin’s motivation.

  2. logicalvoicesays says: Nov 7, 2013 9:44 AM

    If you never played team sports at any level high school or beyond, you don’t understand. Incognito should just be fined, nothing more.

  3. liberalhippie says: Nov 7, 2013 9:49 AM

    I think he totally should

  4. negativten says: Nov 7, 2013 9:49 AM

    Is’nt today Thursday?I think there’s a game tonight

  5. ch0rn says: Nov 7, 2013 9:49 AM

    Martin is a baby

  6. whiplash013 says: Nov 7, 2013 9:50 AM

    It’s all about the Benjamins

  7. osiris33 says: Nov 7, 2013 9:55 AM

    He’ll sue. That what this thing has been about from the beginning.

  8. bennyb82 says: Nov 7, 2013 9:55 AM

    Just put them both on Dr. Phil and move on.

  9. FinFan68 says: Nov 7, 2013 10:01 AM

    Good article. I am in the camp that believes Martin does not want to be a football player and some of this stuff has been molded for a potential lawsuit. I don’t necessarily believe he is the driving force behind a lawsuit. He sounds like a smart guy but he also sounds like he can easily be coerced–by teammates, parents, agent, etc.

    If your personality is not one that can handle conflict well, choosing a profession based on conflict seems like an odd career choice. The money is great but I think Martin wouldn’t be happy as a player even if his workplace environment was a fantasy-world utopia.

  10. steelnucs says: Nov 7, 2013 10:03 AM

    Yes, by all means, get lawyers involved. Just what this mess needs.

    Seems to me that everybody jumped on the bullying / racism / name your offensive behavior bandwagon just a LITTLE bit too soon. I think we’ll see that everybody here has a little bit of blame to share.

  11. stevenwilliams2013 says: Nov 7, 2013 10:04 AM

    I am not choosing sides here, but if Martin sues he has an excellent chance of winning.

  12. geniusry says: Nov 7, 2013 10:08 AM

    The only people supporting Martin are people who have never played the game. Bloggers are ignoring all of the facts coming out in regards to this most notably the Monday Morning QB article from Peter King by the former Dolphins player.

  13. primenumber19 says: Nov 7, 2013 10:13 AM

    You know how I know the NCAA is a joke? All the guys in the dolphins locker room supposedly went to college.

  14. jrcoop says: Nov 7, 2013 10:17 AM

    Funny how things like this always seem to unite teams with that “us against the world” mentality, then they go on to do more than anyone would have expected.

  15. cappa662 says: Nov 7, 2013 10:25 AM

    Damn he was lawyered up since birth for this.

  16. sevun24 says: Nov 7, 2013 10:36 AM

    Even if he does sue is any team willing to bring him in after this…

  17. nfloracle says: Nov 7, 2013 11:36 AM

    Lawyers 21
    NFL Fans 0

  18. thestrategyexpert says: Nov 7, 2013 11:49 AM

    Hopefully for the sake of Martin’s case Ryan Tannehill can get more detailed with what he thinks about the situation. It sounds like he has some fascinating ideas about what happened and who was at fault. My guess is he is on the side of his bully GM that used his 1st Round pick on him. If you are a reporter I don’t know why you aren’t camped out on his lawn just waiting for him to grab the morning paper. He needs to get a microphone in his face now and finish his comments.

  19. beachsidejames says: Nov 7, 2013 12:09 PM

    Tannhill said what he had to say. Going camping with you sounds like a drag.

  20. newjerseygiants says: Nov 7, 2013 12:12 PM

    That’s it….I’m now suing everyone that ever called me names.

  21. briang123 says: Nov 7, 2013 12:35 PM

    Call me cynical, but my guess is that before Martin left the team his parents and their people knew the CBA chapter and verse and have acted accordingly.

  22. mogogo1 says: Nov 7, 2013 12:56 PM

    I’m not sure that Martin could win a lawsuit. The voicemails would be damaging, but he’d have a rough time explaining how he could remain friendly with Incognito for months after the fact.

    It’s also starting to become strange that there aren’t even unnamed sources backing Martin’s full story. He had no friends at all on the team? There wasn’t anybody else being tormented by Incognito or others? Even if all the current team was too scared to say a thing, you’d think there’d be somebody who’d been cut who’d be able to back some of his claims.

  23. frank booth says: Nov 7, 2013 2:06 PM

    geniusry says: Nov 7, 2013 10:08 AM

    The only people supporting Martin are people who have never played the game. Bloggers are ignoring all of the facts coming out in regards to this most notably the Monday Morning QB article from Peter King by the former Dolphins player.
    You’re right. Warren Sapp, Brandon Marshall, Doug Buffone, and Jim Harbaugh, among others, never played football.

  24. wyobroncoboy says: Nov 7, 2013 5:04 PM

    The ranting and raving V-Mail from Incognito seems to me that he is ragging on Martin for not doing something publicly that was agreed upon earlier by both/ Not sayin, just sayin.

    “Not that there is anything wrong with that”

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