Lawyer cites confidentiality on behalf of former Dolphins trainer

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When a lawyer has an opportunity to represent a high-profile client, the lawyer must resist the temptation to seize the opportunity to make himself high profile at the expense of his client’s interests.

In the case of former Dolphins head trainer Kevin O’Neill, the lawyer’s desire to grab the spotlight may have overcome the interests of O’Neill.  That’s the only way we can explain the lengthy statement released by veteran personal-injury lawyer Jack Scarola on O’Neill’s behalf.

Armando Salguero of the Miami Herald has posted the full statement.  Scarola overlooks the fact that the court of public opinion has a short attention span; few will take the time to read and digest the 18-paragraph release.

That actually could be a good thing.  Lurking in paragraph 16 is a response to the contention that O’Neill showed hostility to the investigation conducted by Ted Wells:  “‘Voluntary'” cooperation that would involve responding to questions regarding the psychological well-being of players under his care was not an option for Mr. O’Neill unless and until proper waivers were obtained from all the individuals whose privacy rights were at stake.”

That’s the same argument former Dolphins coach Jimmy Johnson made on behalf of O’Neill.  And it’s illogical even when coming from a lawyer; Wells was hired to conduct an internal investigation regarding misconduct within the Dolphins organization.  The employees who were asked to be interviewed were expected to cooperate.  Cooperation in an internal investigation would not have violated the privacy rights of other employees.

The bigger question is whether O’Neill explained his reluctance to cooperate by requesting signed waivers from the “individuals whose privacy rights were at stake,” or whether, as Wells concluded, O’Neill merely displayed hostility to the investigation.

If O’Neill had simply asked for waivers, waivers (though not necessary) could have been obtained.  At a minimum, Wells could have tried to explain to O’Neill why waivers weren’t needed.

In fairness to Scarola and O’Neill, maybe there’s a principle of Florida law that allows an employee to refuse to cooperate with an internal investigation based on coworker privacy rights that somehow trump the ability of the employer to determine the extent and the cause of misconduct in order to prevent it from happening in the future.  Even then, it may not have been a good idea to issue a lengthy statement divulging extensive facts about O’Neill’s claims, and making clear his intention to sue.

After O’Neill was fired, it was believed that another NFL team would hire him.  If/when he sues the league or the Dolphins, O’Neill could become unemployable, as a practical matter, by any other NFL team.

16 responses to “Lawyer cites confidentiality on behalf of former Dolphins trainer

  1. I have to admit it does sound like an interesting case they have to work on. The strength of any merits to O’Neil’s complaints are going to be predicated upon what the Dolphins and Ted Wells have to say about this firing and that hostility. That’s a pretty generic and unspecific attitude that Wells attributed to O’Neil, so what are the details that led him to make that characterization? And what was the reason O’Neil was fired anyhow, that’s curious to know more about. I wonder if they will say it was because Ted Wells told them to, or if they just came around to the determination that he’s not a very good trainer. They should probably go with the latter explanation.

  2. The HIPAA Privacy Rule establishes national standards to protect individuals’ medical records and other personal health information and applies to health plans, health care clearinghouses, and those health care providers that conduct certain health care transactions electronically. The Rule requires appropriate safeguards to protect the privacy of personal health information, and sets limits and conditions on the uses and disclosures that may be made of such information without patient authorization. The Rule also gives patients rights over their health information, including rights to examine and obtain a copy of their health records, and to request corrections.

  3. His hostility towards the investigator is enough to be fired for cause. He was a good trainer but that kind of stupidity in a high profile scandal cannot be tolerated. I’m surprised he wasn’t fired immediately.

  4. “At a minimum, Wells could have tried to explain to O’Neill why waivers weren’t needed.”

    I don’t understand. If he is a trainer and the questions would have divulged an injury to a player who may or may not still be on the Dolphins roster or even the NFL, can he divulge that information? Potentially even disclosing the identity of who was in the trainer’s room (and say might not have been listed on a league injury report or something) could violate the patient/player’s privacy rights…or no?

  5. What qualifies you to give a legal opinion that waivers aren’t necessary? Do you really know the Hipaa laws or do you just play a lawyer on TV?

    Without seeing the actual disclosures and releases they use for their player I can only guess that O’Neill did the right thing in playing it safe. Here’s why. Most disclosures indicate that information will only be shared inside a given organization as necessary for the treatment of the individual. Mr. Wells was clearly not part of the organization. He was supposedly an independent outside investigator. I say “supposedly” because he appears to work for the NFL which means he is not acting independently and is not working for the Dolphins or Ross. Furthermore, this was not being done for the treatment of those who would have their privacy violated. This was also not a legal investigation by the courts and therefore lacked the necessary subpoenas requiring his cooperation. And it’s not insubordination when your boss is asking you to break the law.

    Here’s a comparable scenario that might make sense for you. Let’s say you are a patient at a hospital. The hospital decides to hire an independent investigator to determine how well the doctor is treating his patients. Neither the doctors or the staff can answer questions regarding specific patients because of the Hipaa laws. They can’t even acknowledge that a specific person is a patient. You can’t fire a person for not breaking the law at your request. (Unless you want a law suit)

  6. Pathetic,
    I went through a bulling thing just like this, after much fuss, we all went on to the 4th grade and became friends.
    This is a PC waste of time, money and energy.

  7. Isn’t Florida a right to work state? Why do they need any reason to fire someone? We all know why they let him go, but it is tough suing for wrongful termination in a right to work state, unless trainers are part of some union I’m not aware of. Also he should have a contract, so unless they fired him with cause he has no grounds to sue. Turner was paid the remaining balance of his contract, O’Neil should be treated the same.

  8. I’m inclined to think his refusal to cooperate was based on self preservation and not wanting to implicate others. The privacy issues under HIPAA appears to be a flimsy excuse and an after thought after consulting with lawyers.

    Did the investigator focus on the social situations as in how the players related to another OR players medical issues.

    Did he standby and watch (whatever the allegations of abuse) and engaged in some of those activities while not doing anything to alert upper management there might be a problem. If his skills as trainer is not the problem, but how he as a supervising employee did not alert others about a potential problem.

    Upper management should take some responsibility too. For example, did Philbin ever discuss with the OC and this trainer that one of his players contemplated suicide. This is a workplace issue or have they learned nothing from the player in KC that shot himself in the parking lot.

    Seems like people were operating in a vacuum and this guy is the sacrificial lamb. They should settle with him.

  9. Just because Florida is not a right to work state doesn’t mean that employees don’t have rights. There are many forms of wrongful termination even it “at will” states. You still can’t discriminate. You can’t force someone to go against their religious beliefs and you can’t fire someone for insubordination because they refuse to break the law for you. You also can’t ruin their name with libelous statements.

  10. Lol, …Just aother lengthy chapter to the Dolphins soap opera.

    People [ at least their small fan base]…enjoy speaking about how this is a strong franchise….

    Well, that was 40+ years ago….Even in 90’s, couldn’t win , couldn’t get there. Then Wanny, JJ, Saban…2 out of 3 strong coaches…Couldn’t get anything done.

    Ownership means a lot..Ask the Giants, Steelers, Patriots, Ravens…all led well….Dolphins, no they are not.

  11. As biased as the Wells report appeared to me (gaping holes, certain people called to task and others glaringly absent), it is simply moronic to be “hostile” towards anyone during an investigation. Whether legal, illegal or some gray area in-between, when you work for an organization struggling with a bad image perception, that is not the best time to show your butt. He may have been a great trainer, but one idiotic move is all it takes to find yourself in the unemployment line. Fortunately for him, we have a “sue happy” society so we’ll all have to read about this in the funny papers for months to come *sigh*

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