You may remember that Jonathan Martin, a former starting offensive tackle for the Miami Dolphins, suddenly left the team during the 2013 season. He was a second-round draft pick in 2012 who played college football at Stanford. In college, he was twice selected as an All-American offensive lineman. During the 2012 season, he played at 6’5″ and 304 pounds—not someone you would think could be bullied. Then again, his work crew—the Dolphins’ offensive line—weren’t your normal size either.
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After he left the team because of harassment, a workplace investigation led to the firing of one of the coaches. The U.S. 11th Circuit Court of Appeals—which covers Alabama, Florida, and Georgia—recently dismissed the fired coach’s defamation lawsuit. Read on to find out why.
Flag on the Play
In 2013, Martin was 24 years old and in just his second NFL season. As a rookie, he started every game for the Dolphins. He quickly gained a reputation as a talented offensive tackle and started in every 2013 game until he left. He even reportedly signed a 4-year, $4,784,267 contract that included a $1,919,468 signing bonus and a guaranteed annual salary of $1,196,067!
In late October, midway through the 2013 season, news articles in the sports pages reported that Martin had “gone AWOL” and had abruptly left during a team dinner at the Dolphins practice facility. One commentator reported that the incident was the “final straw” and that as a result, Martin had checked himself into a psychiatric hospital for treatment.
Soon reports began to appear claiming that Martin had been a victim of “bullying,” “harassment,” and “ridicule” by his teammates. The story quickly went viral. After the Dolphins‘ staff learned of a voicemail message that center Richie Incognito had left for Martin months earlier, in which he used a racist slur and made vulgar taunts, the team quickly suspended Incognito.
Within a week of Martin’s departure, NFL Commissioner Roger Goodell announced that the NFL had retained New York law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP to conduct “an independent investigation” of what happened to Martin. The firm was instructed to investigate issues of “workplace conduct” and to prepare a report for the commissioner, which would be made public.
Unnecessary Roughness
The Dolphins had distributed a workplace conduct policy to all players, who had to sign an acknowledgement that they understood the policy and agreed to abide by it. The policy defined harassment to include “unwelcome contact; jokes, comments and antics; generalizations and put-downs.”
After a 3-month investigation, the report concluded that three starters on the team’s offensive line—Incognito, John Jerry, and Mike Pouncey—had engaged in a pattern of harassment directed not only at Martin, but also at another young offensive lineman, identified only as “Player A”, and an unnamed assistant trainer. However, Martin’s case was more complicated because of his background and his unusual relationship with Incognito.
According to the firm’s report, Martin and Incognito “developed an odd but seemingly close friendship.” The two men “often communicated in a vulgar manner.” Incognito claimed it was friendly teasing that he described as “locker room banter meant in good fun and that Martin was a willing and active participant in verbal sparring, never letting on that he was hurt by it.”
For his part, Martin admitted that although he did participate in the banter, it was his attempt to deflect and defend himself from harsher treatment. The report included analysis from a psychologist that “such a reaction is consistent with the behavior of a victim of abusive treatment.”
The law firm also discovered that Martin had been the victim of bullying while in middle and high school, which diminished his self-confidence and self-esteem and contributed to what he self-diagnosed as periodic bouts of depression. He claimed that the depression he experienced in high school recurred as a result of mistreatment by his Miami teammates and that on two occasions in 2013, he even contemplated suicide.
During interviews, Martin claimed that he was “distressed” by insults from his teammates and experienced “emotional turmoil” because he thought that he was soft and couldn’t stop the verbal insults being hurled at him. However, the report concluded that his “vulnerabilities [didn’t] excuse the harassment that was directed at him. That the same taunts might have bounced off a different person is beside the point. Bullies often pick vulnerable victims, but this makes their conduct more, not less, objectionable.”
Ejected from the Game
Five days after reading the report, the Dolphins fired offensive line coach James Turner, who was identified by the firm as having acted unprofessionally and played a role in Martin’s struggles. The report found that the coaches and players had created a culture that enabled bullying by discouraging players from “snitching” on other players.
The taunting was so offensive and awful that we won’t reprint it here. However, the firm chose not to “tone down” the racist, sexually explicit, and homophobic words used by players and staff in the interviews. As the report states, “The actual words must speak for themselves, for they are crucial in understanding how the players and others interacted, and they show why we concluded that some of the behavior of Martin’s teammates exceeded the bounds of common decency, even in an environment that often features profanity and mental and physical intimidation.”
Six months after being fired, Turner sued the law firm and the lawyer who led the investigation, Ted Wells, Jr. He filed suit under Florida law in federal court in Miami for defamation of his character in their report. The district court decided that he had made three different claims: (1) defamation per se, (2) common-law defamation based on actual malice, recklessness, or negligence, and (3) defamation by implication.
The law firm asked the court to dismiss Turner’s suit for three reasons. First, the report consisted of opinions and therefore wasn’t actionable in a defamation suit. Second, his complaint misstated what the report actually said and failed to identify any false statement of fact. Lastly, he was a “public figure” and had failed to adequately claim “actual malice” by the firm or Wells in his suit.
The district court sided with the law firm and Wells and threw out Turner’s suit. He appealed the dismissal to the 11th Circuit. The appeals court issued its decision on January 18, 2018.
Reviewing the Game Tape
The appeals court began by listing the requirements for defamation in Florida:
- The publication of harmful material;
- The statements or content are false;
- The statements were made with knowledge of or reckless disregard for the truth concerning a public official, or at least negligently concerning a private person;
- The person suffered damages; and,
- The statements must be defamatory.
But statements that are true—or that are not “readily capable of being proven false”—and statements of “pure opinion” are protected from defamation suits by the First Amendment to the U.S. Constitution.
Turner’s appeal pointed to four specific passages in the report that he claimed included certain statements that were false, defamed his professional reputation, and cost him his job.
Blow-Up Doll Gift by Turner
The report described that the unnamed Player A had been the target of homophobic jokes, even though no one thought that he was gay. However, at Christmas in 2012, Turner gave each offensive lineman a gift bag. All of the gift bags contained female blow-up dolls except for the gift bag that Player A received, which contained a male blow-up doll.
In the interview with Turner, he didn’t credibly deny that he gave this gift bag to Player A. Further, Martin told the law firm he was “offended that Turner endorsed this humiliating treatment of Player A by participating in it.” Turner claimed that the blow-up doll was a “joke—a satirical commentary on male Player A’s unsuccessful attempts at dating women.”
He argued that the purpose of his gifts was to encourage the players to work on their relationships with their significant others, lest they end up alone, and that the particular gift to Player A “in no way expressed cruelty or homophobia on Turner’s part.”
The appeals court rejected this argument and found that none of the statements in the report that described the doll incident was defamatory. It laid out several undisputed facts in reaching this finding: “(1) that linemen players engaged in persistent homophobic taunting of Player A, (2) that Turner knew about that taunting, and (3) that Turner gave other linemen a female blow-up doll, but gave Player A, and him alone, a male blow-up doll.”
Because the law firm’s assessment of his conduct was based on facts that couldn’t be easily disputed, the court found its conclusion to be “opinion” and thus not unlawful defamation in Florida.
Insulting Comments to Martin
The report concluded that Martin’s teammates subjected him to verbal taunts and made disparaging remarks about members of his family, including “sexually crude references” to his sister and mother. He told the investigators that he was “particularly offended” by these comments, but “his obvious discomfort only increased the frequency and intensity of the remarks.”
Again, Turner claimed that the lawyers defamed him through two statements they made in the report: that he was “certainly aware of some of the insulting comments directed to Martin” and that “it [was] undisputed that [he] never sought to stop the behavior.”
But here, also, the court concluded that there was no defamation because he didn’t say that he was never present when Martin was subjected to the insulting taunting, nor did he identify any action he took to stop the taunts.
The Judas Code
The report noted that the offensive linemen enforced a “Judas code” against snitching through an internal fine system. The NFL allowed players to establish fine systems as long as any money collected was put to a common, team-oriented purpose, such as a post-season party.
The investigators found that the offensive line began to enforce fines for trivial things such as wearing “ugly shoes.” Watching tape from games, if a player pointed out that he wasn’t at fault on a missed block, he was assessed a “Judas” fine for blaming the missed block on another player. This atmosphere contributed to Martin’s decision not to come forward and complain about the hazing and taunting that he received.
In deciding if this was defamation, the court noted that the report had stated that Turner denied knowing about a Judas code or what it meant. But his denial wasn’t credible because evidence indicated that he “was aware of the ‘Judas’ concept and . . . that he [had] discussed its meaning with a number of linemen, even explaining how the biblical Judas had betrayed Jesus Christ and so became a ‘snitch.'” In view of the facts, the court found that there was no false statement to support his defamation claim.
Texting to Martin by Turner
When Martin walked out, he checked himself into a hospital and asked for psychiatric help. As news spread in the media, Incognito became the focus of considerable criticism as a leader in harassing Martin.
Turner reached out to Martin in the hospital to ask him to publicly say that Incognito wasn’t at fault. He sent a text saying, “Richie Incognito is getting hammered on national TV. This is not right. You could put an end to all the rumors with a simple statement. DO THE RIGHT THING. NOW.” Martin answered that he had been advised not to say anything.
Turner couldn’t accept Martin’s refusal to make a statement. He responded, “John I want the best for you and your health but make a statement and take the heat off Richie and the lockerroom [sic]. This isn’t right.” When there was no response, he texted, “I know you are a man of character. Where is it?” Three days later, he texted again, “It is never too late to do the right thing!”
The law firm’s report concluded that Turner “should have realized that it was inappropriate to send such text messages to an emotionally troubled player” and that his conduct “demonstrated poor judgment.” He claimed these conclusions were defamatory, but the court dismissed his claims, finding that “the . . . conclusions of ‘inappropriate’ and ‘poor judgment’ [were] pure opinion” and did not constitute defamation under Florida law.
The appeals court also found that Turner was a public figure and was required to prove that the lawyers had “actual malice” in writing and publishing their statements. He had to “allege facts sufficient to give rise to a reasonable inference that the false statement was made with knowledge that it was false or with reckless disregard of whether it was false or not.” His complaint didn’t allege sufficient facts to support a finding of “actual malice.” James L. Turner v. Theodore V. Wells Jr., Paul, Weiss, Rifkind, Wharton & Garrison, LLP, Case No. 16-15692 (11th Cir., January 18, 2018).
Takeaway
Although the law firm’s 144-page report is lengthy, it’s a good example of the thoroughness and balance required in conducting investigations. Bringing in an outsider is a good way to remove preconceived ideas about employees and practices and have an objective view of the facts. In today’s harassment environment, those of us in HR will be facing more investigations of this type.
Tom Harper, an editor of Florida Employment Law Letter, can be reached at tom@employmentlawflorida.com.