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Linda Kenney Baden
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To Richie Incognito: Remember-There’s No Crying in Football!


As a lawyer who has handled many racial discrimination cases and many workplace harassment cases, I feel very strongly about the Richie Incognito, Jonathan Martin, Miami Dolphins, NFL disgrace. Here was the piece I wrote for Sports Court Media.

Courtesy TMZ/ A League of Their Own

Remember part of the the famous conversation in the 1992 movie A League of Their Own? With a few deletions it goes like this:

Jimmy Dugan: Rogers Hornsby was my manager, and he called me a talking pile of pigshit. And that was when my parents drove all the way down from Michigan to see me play the game. And did I cry?

Evelyn Gardner: No, no, no.

Jimmy Dugan: Because there’s no crying in baseball. THERE’S NO CRYING IN BASEBALL! No crying!

There’s no crying in football. That was the story that was being sold to us fans about the Richie Incognito- Jonathan Martin matter. Incognito is the now infamous Miami Dolphins lineman who has a reputation worse than some historical evil men such as Attila the Hun. Even as late as today, his supporters clearly placed an entry on Jonathan Martin’s Wikipedia page (since we reported on it, it has since been removed) with the cry baby theme.

Incognito’s teflon resilience to stay as NFL player has been, up until yesterday, aided and abetted by others. As late as August 2013 the NFL published on their website a puff piece about what an angel Incognito had transformed into. We were even taken on avideo tour of his tattoos, the phoenix who rises from the flames with his Made in America bicep wraparound tattoo. As he shows it off, he proudly proclaims- “No not made in Taiwan.” He sounds to me like he has clear disdain for that Asian country and its peoples. (As a side note, Incognito’s off the cuff racial statement is a distinct matter fromour prior Starting Line-Up post where we say NFL towels should be made in America to foster our economy with our All- American game of football and unlike Incognito’s tone is not made to put other races down.)

Incognito no longer. We are all aware of the saga as of now. Martin is an NFL offensive tackle for the Miami Dolphins. Jonathan Martin was apparently harassed so grotesquely that he was willing to walk away from his football career and his lifelong dream of being an NFL player. Imagine what kind of torture he went through to get him to make that decision.

Then the real deal was exposed when Incognito’s voice mail was disclosed to the public. The secret was out.

Let’s put it in perspective outside the football field. A young lawyer, who is fairly new out of law school, is hired to work in my office- a law corporation. It has an executive committee, but I am one of the top dogs. I take my whole office out to dinner with the new lawyer in tow at one of the fanciest restaurants. The best of everything is flowing, from the most expensive food to a gold magnum of champagne. The check comes and then I tell the young lawyer that he or she has to pick up the five-figure bill– excluding the decimal point. Eat it or beat it. Because the new attorney is about to start practicing his/her dream job, he/she pays the bill.

That’s only the start. When I give this new lawyer a file to work on- he or she opens it up and it is filled with peanuts. Message sent about what I think the attorney is in the animal kingdom. Then I recruit a clique within my firm beholding to me to taunt the lawyer some more. The young lawyer balks and starts getting some help to deal with the emotional aspect of this humiliation. I do not stop there. The young lawyer is biracial. I then leave the following message on the young lawyer’s phone that says:

“Hey, wassup, you half n—– piece of s—. I saw you on Twitter, you been training 10 weeks. [I want to] s— in your f—ing mouth. [I’m going to] slap your f—ing mouth.”
“[I’m going to] slap your real mother across the face [laughter].” “F— you, you’re still a rookie. I’ll kill you.”

And there is more to my hypothetical. It’s not the first time I have been in trouble. I was suspended by my college for aggressive abusive behavior. I spat on opposing attorneys. Many law firms wouldn’t hire me because I had the anagram reputation DNRC- do not recruit because of character. I was fined $95,ooo by the bar association for aggressive actions 5 times in 5 years. And this is only the tip of the unpinning of my reputation as a person with bad character.

Would any jury find this conduct appropriate or acceptable? Would it be considered harmless hazing, a rite of passage for the youngster? Or would it be illegal workplace harassment? Or even criminal behavior? The answer is a no brainer.

Next question, would any jury hold the employer liable for this conduct if the employer knew and failed to monitor the employee or take further action? More complicated legal analysis but a moral no brainer.

While Incognito did not resort to the ultimate racial epithet- leaving a proverbial noose hanging on Martin’s locker next to Incognito’s locker door sign where he proclaims he hates taxes and rookies, his actions are none the less very serious and egregious. Incognito engaged in unwelcome harassment under the law. The Incognito message appears to threaten to kill Martin – or what we call in the law a terroristic threat and an assault (you do not need to touch someone to be guilty of an assault under the law).

Does Incognito have a threatening presence that could put anyone including another big brawny football player in fear? Watch the TMZ N word shirtless bar rage video and decide for yourself.

Some are saying Incognito is not finished in the League. If Incognito is good enough some other team would hire him because teams are short of players in his position. They point to Riley Cooper wide receiver for the Philadelphia Eagles, who after he was refused backstage admission to a concert, called the security bouncer for Kenny Chesney the N word. They also point to Michael Vick, whose misdeeds need no reiteration. But in Riley’s case there wasn’t a history of violence. And in Vick’s case, he appears to be repentant and has not committed another act of violence since being imprisoned. Legally, these distinctions are very important regardless of what one personally thinks of either Riley or Vick.

The matter may get complicated under the law, because Incognito disclosed in that August puff piece that he has taken medication for his aggressive demons. But as of now, he is suspended by the Miami Dolphins for conduct detrimental to the team. And he does not yet seem to understand the gravity of his actions. In a new interview he calmly states, “I’m just trying to weather the storm right now… (this or it) will pass.” Despite this, he still has the ability to get the treatment he so clearly needs. Does his mental disorder excuse his actions? His representatives and lawyers will argue that in the future for his future. But what about all the other people who have looked the other way during Incognito’s reign of terror? What is their excuse?

In the meantime, here are my words of wisdom to Richie Incognito: There’s no crying in football! Remember them when you’re kicked out of your kingdom of ashes.

This article was first published by Sports Court Media:

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