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Linda Kenney Baden
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Women Lawyers: Jonathan Martin’s Family Changes the Dynamic in the Miami Dolphins Incognito Case


As a trial lawyer and co-founder of Sports Court Media, I recently posted an article titled Jonathan Martin’s Family Changes the Dynamic in the Miami Dolphins Incognito Case. When I went back onto the page to look at the story about Jonathan Martin’s mother, I was struck by the fact that the screenshot quite accidentally featured three woman lawyers, myself, my business partner Tamara Holder, and Martin’s mother Jane Howard-Martin. It should not matter what your position is on the Martin/Incognito matter appreciate this photo. Woman, law, business and sports in 2013!

In any event, here is a reprint of my column for Sports Court Media:

“The Jonathan Martin, Richie Incognito, Miami Dolphins menage a trois is a media sensation. But it is also a lot more than that. Media sensations in the present day are limited in scope by a public attention deficit disorder syndrome. Mark my words; the Jonathan Martin/Richie Incognito/Miami Dolphins is different, a seminal matter with legs. It is a sports apocalypse. It will be the catalyst for change in football. It will cause the NFL not just to be on the field with the teams, but in the team locker rooms. You will see regulations on hazing. You will see price limitations- $1000.00- on what a rookie will be mandated to pay for team dinners. It is coming and it is coming soon.

Lawyers are not allowed to specialize, but many of us concentrate on specific areas. My concentrations are in criminal defense, employment law, and civil rights. All three areas dovetail with each other. For instance when I litigated the New Jersey racial profiling case when the troopers shot three minority young men on their way to basketball camp, it was a civil rights issue. But it also involved understanding the criminal law dynamic against the troopers. When I have represented police officers in federal court against their employer for workplace discrimination, the cases involved federal race, employment discrimination and civil rights claims. When I represented a whistleblower or employees in front of the NJ Supreme Court, cases involved harassment, defamation, and state constitutional rights claim. When I represented the first female pilot captain of a wide-body plane against Contintental Airlines for sexual harassment in the cockpit- giving new meaning to the word- the case involved various jurisdictions and the interplay of laws.

What does Jonathan Martin have that other players do not? Answer: A high-powered professional mom, an experienced lawyer who has concentrated on employment law–Jane Howard-Martin.

Courtesy USA Today
Courtesy USA Today

And just like my practice, she has a sophisticated understanding of the relationship of workplace harassment, discrimination, civil rights and criminal law. So when I look at the family of Jonathan Martin, especially his mother who KNOWS harassment workplace law. It tells me several important things. First, Martin has a real support system. He is not a gamer from drug-dealer parents or a non-existent family backup. He does not need the team to be his brotherhood or replace his identity. And his mother knows how to advise him about setting the framework for change. Martin’s maternal ammunition cannot be taken likely by any of those involved. He has already hired a truly experienced attorney for this fight- David Cornwell– not just a lawyer who only appears in front of a microphone. Cornwell has already shown us he is facile in maneuvering public opinion- his jury pool in a high profile case- by merely releasing one disgusting text about a threat to gang-rape Martin’s sister.

Martin might be the perfect candidate to challenge the NFL’s locker-room culture if he chooses. It’s not just that the Stanford-educated lineman has a legal narrative of the suspended Incognito leaving a voice mail using the N-word, his sister threatened by another teammate and being “maliciously” attacked…(I)t’s also that his family has thought outside the locker-room culture going back generations. His great-grandfather, Harvard Class of ’24, was one of a dozen African-American students on that campus, but wasn’t allowed to live in a campus dormitory because of his race. In all, three generations of Harvard graduates preceded Martin, including both his parents. His father, Gus, is a college professor in the Cal-State system and author of books entitled, “Understanding Terrorism” and “Encyclopedia of Terrorism.”…. Martin’s mother, the daughter of two college professors, is more than comfortable dealing with employment issues at the center of this storm. She was professionally raised in this exact world of employment concerns and expensive lawsuits.

I have heard it suggested that this story was blown up only because the media grabbed hold. Perhaps it will go away. Richie Incognito is also relying on this short-term memory of media ratings to go on to the next big story. But even if that happens here, it is a ‘so what’ in terms of its ultimate effect on Martin’s claims or as the motivation for change from the NFL bigwigs. Why? First, on initial glance it appears Martin has an excellent legal claim against individuals who would be subject to punitive money damages against them individually which they would have to pay out of their own pockets. Since these ballers make millions, punitive damages could be in the millions against each of them personally if they go to arbitration or trial and lose. And if any Dolphin supervisors engaged, condoned, encouraged or otherwise directly aided and abetted the harassment, the Miami Dolphins could be directly legally liable to Martin because of supervisory involvement. If no supervisors were involved, then Martin must have availed himself of any internal complaint processes so that the Miami Dolphins were put on notice of the harassment and had an opportunity to remedy it. If the Dolphins didn’t act, non-involvement would also make them liable for workplace harassment. It is likely that his mother advised him on these technical legal avenues and pitfalls.

But the biggest cannon Martin possesses is still on the horizon. It is his lawyer’s ability to have an easy and sensational cross-examination of all those involved. I would imagine that any cross of the players or management would show they just don’t get it, that the locker room is not just a club- it is also a workplace. And that these players work for me the fan who pays their salaries through ticket sales, and I want a team who wins but with those who have the character of Peyton Manning and Tim Tebow, not of Richie Incognito, Sam Hurd or Jovan Belcher. Instead, it will be opined that these men are the last gladiators, the players were just trying to toughen Martin up, and that locker rooms are vulgar places. Newsflash- the threat to gang rape Martin’s sister is not just a vulgarity- it is evidence. And as Martin tweeted on October 25, 2013: “Just remember: what you tweet will one day be read by your great grand children #ThinkBeforeYouTweet#InternetIsForever“, same too goes for vial messages that are memorialized in the media.

If I had this case I would be licking my proverbial trial attorney chops waiting for the cross-examination in these areas. Us lawyers are also gladiators in the Sports Court. And bullies crumble on the level playing field of a court of law.”

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