A Risk Manager’s Take on the Richie Incognito Scandal

Over the past two days I’ve gotten a few emails from readers asking me to put on my risk management hat and weigh in on the Richie Incognito case.  Those readers who don’t watch ESPN or listen to sports talk-radio will be surprised to learn that Richie Incognito is not, in fact, the super-villain arch-nemesis of Carlos Danger.  No, Richie Incognito is the highly improbable name of the NFL offensive linesman suspended yesterday by the Miami Dolphins.  If you haven’t yet heard the story, here is a quick synopsis:

Last week Jonathan Martin, a teammate and fellow linesman of Incognito’s, left the Dolphins without warning or official explanation.  Sources said that Martin, who has suffered from depression in the past, left the team for “emotional reasons” — a highly unusual circumstance in professional sports.  He has subsequently been placed on the Dolphin’s injured reserved list.  This week, it came out that Martin had been the focus of abuse from Incognito.  Most of this abuse came about in Martin’s rookie year, and apparently included insults, physical intimidation, and having Martin pick up the tab for expensive meals and beverages ordered by team veterans.  (And by expensive, I mean NFL salary expensive; the one meal tab cited by sources was over $15,000.)  However, it appears that Incognito’s abuse of Martin has continued past his rookie season.

The Dolphins suspended Incognito indefinitely yesterday, saying that such behavior could not be tolerated.  They also released this transcript of a voice message that Incognito (who is white) left for Martin (who is African American) on Martin’s phone last spring:

“Hey, wassup, you half-nigger piece of shit. I saw you on Twitter, you been training 10 weeks. [I want to] shit in your fucking mouth. [I’m going to] slap your fucking mouth. [I’m going to] slap your real mother across the face [laughter]. Fuck you, you’re still a rookie. I’ll kill you.”

By most accounts, most of this is part of the NFL’s rookie-hazing culture.  Some NFL talking heads, such as Indianapolis Colts ex-coach Tony Dungy and ex-general manager Bill Polian, have been quick to go on air and declare themselves shocked — shocked! — at Incognito’s actions.  But there also seem to be a hell of a lot of insiders just as quick to say Incognito’s actions were actually pretty routine, and to lay the brouhaha blame at the feet of Jonathan Martin.

One of those insiders that blames Martin is Jason Scukanek, an ex-NFL linesman and current sports talk radio host here in Portland, Oregon.^[1]  I heard a brief interview of Scukanek on Monday on the Travis & Wilcox Show, the program that precedes Scukanek’s own on his station.  In the interview, he used his own experience with the Tampa Bay Buccaneers to illustrate the relative banality of Incognito’s behavior.  When he was first hired by Tampa Bay, says Scukanek, he replaced an offensive linesman that was well liked by the rest of the line.  To make matters worse, he was a white, long-haired Mormon boy replacing an African American in an entire line of African Americans; the language his teammates used was far worse than what was recorded on Martin’s voicemail. His teammates resented him for being hired, for being new, and for being different, and the abuse they layered onto him was both intense and relentless.  So much so that Scukanek was forced into actual fistfights with his teammates on a daily basis.  When I was listening to the story, I kept waiting for the part where they all eventually became bffs, but that part never came.  As best as I can tell, being physically and emotionally assaulted on a regular basis was simply the cost of doing business with the Tampa Bay Buccaneers.

It is interesting then, to see Scukanek come down so hard on Jonathan Martin.  “Martin needs to put on his big-boy pants,” the ex-linesman said repeatedly.  In his mind, Martin’s refusal to turn the other check — and worse, to take the antics public — show up on Scukanek’s radar as being both immature and unprofessional.  He states rather strongly that if you take away that kind of behavior, the NFL will be a different product entirely – one that fans will have no desire to watch.  Travis Demers and Josh Wilcox, the sports hosts interviewing Scukanek, agreed with this assessment.  Looking around the internet’s sport sites this morning, it appears most everyone else does too.  “Stop the hazing and you ruin the game” is the new football fan mantra.

I’ll get into the legalities in a moment, but let me first stop to wonder at this:  In the NFL, beating up your coworkers, harassing them at home, using racial slurs and just generally abusing who you can because you can is apparently a sign of both maturity and professionalism.  And objecting to that kind of treatment to the point that you decide it’s just not worth it is a sign of immaturity and lack of professionalism, or– in Martin’s case — proof of mental illness.  Seriously, how weird is that?

But I digress…

There are really two risk management questions at the heart of the Martin-Incognito mini-scandal: Can the NFL legally allow its players to harass one another when its culture demands it, and would changing that culture result in the death of the NFL, as Scukanek, Demurs, Wilcox and so many others vehemently insist?

The first question is easy to answer.  You cannot legally allow an employee to abuse and or harass another employee.  Period.  What’s more, contrary to what a lot of Incognito supporters say, the fact that you have a long-standing culture that allows it doesn’t make it more legal — in fact it actually makes the NFL more liable.  And make no mistake; the NFL is absolutely liable should Martin decide to take legal action.

Workplace harassment laws are pretty clear that it is the employers’ responsibility to make sure that an employee does not suffer from said harassment as part of his or her job.  In most cases, employers are simply required to investigate the validity of an employee’s harassment claim and take appropriate actions.  To be fair, this seems to be what the NFL and the Dolphins are currently doing with Martin and Incognito.  However, in extreme circumstances an employer can be held liable if it can be shown they should have reasonably been aware that harassment was ongoing and did nothing, either due to negligence or tacit approval.  In these cases, waiting until you’re concerned a lawsuit might be coming to take action is actually something of a strike against you; this certainly seems to be the case with both the Dolphins and the NFL.

So there is little question that the NFL is liable.  However, in order for those liabilities to be realized someone will have to make a claim against the league, and therein lies the rub.  The very culture that makes the NFL financially vulnerable is exactly what has protected it from suits over time.  Most employees actually like the culture, and don’t wish to see it changed. Those that do object privately face the prospect of being unemployable in the League should they speak up.  Jonathan Martin may decide to buck this trend and sue, but if he doesn’t there really will be no incentive for the League to make any substantial changes.  The NFL’s ongoing harassment situation is similar to the ongoing sexual harassment situation in academia and the media industry: it’s pretty universal, everyone absolutely knows about it, and the threat of universal and permanent professional exile keeps anyone from doing very much about it.

This brings us to the second and more important question raised by the Martin-Incognito scandal: would changing the culture of harassment really be the death of the NFL?  The answer to this question is not quite so clear cut, and before I attempt to answer it I need to be very upfront here: I myself have never played even high school football, let alone college or pro.  My firsthand knowledge of what goes on in a football locker room is basically butkus. (Get it?)

That being said, I think it instructive to go back and look at other industries where harassment cultures have been changed.  Pick any at random – law, medicine, manufacturing, whatever – and you’ll find that the exact same objections proffered by NFL culture supporters were used as a reason not to change the culture in those other industries.  Yet in every industry where the threat of realized lawsuits forced changes in a pro-harassment cultural, those industries did just fine.  Indeed, the transitions for each were mostly notable for how uneventful they ended up being.  I’m unsure why football would be any different.  We tend to think of the NFL as being a big frat house of boys playing games for money, but it’s actually a business staffed by adults.  It’s telling, I think, that when Jason Scukanek and others say that taking away the “right” of an employee to leave racial slurs on another employee’s phone will negatively affect that employee’s ability to play well on Sunday, they never bother to explain why.  It is, I suspect, one of those truths of culture that has been repeated so often that no one bothers to stop and ask themselves how it could possibly be true.

And for those that say that football is just fundamentally different from other workplaces, I would point out that the history of the NFL is filled with forced cultural changes that traditionalists swore would ruin and bankrupt the game.  When I was a young man, for example, there were almost no black quarterbacks, and one of the reasons given was that starting an African American at that position would destroy the locker room culture and ruin the game for fans.  Similar arguments were made around the same time about allowing women reporters to cover the sport.  In my father’s time those arguments were made about allowing non-white players to play at all.  Instant replay, rules protecting the quarterback, rules protecting defenseless receivers, outlawing a player using a helmet as a weapon, the list of changes that would “ruin the sport and ensure no one would ever watch it” goes on and on.  In each case, the NFL has thrived.

Regardless of what Scukanek thinks, I find the notion that fans are going to hear that NFL players are no longer allowed to make harassing phone calls to their team mate’s homes and decide that they’re finished watching professional football highly dubious.  And though he would know better than I, history suggests it unlikely that NFL player’s are going to miss tackles on Monday night because they was told not to make such a phone call.  Professionals in any industry are remarkably resilient.  In every other industry, people always show that they can adapt; to suggest that NFL players can’t is an insult to NFL players’ maturity and professionalism.

At the end of the day, there’s really one question that the NFL should be asking itself now that their dirty laundry is temporarily laid out for the world to see: Do we really want to change?

Should Martin decide to forgo a lawsuit, it will be interesting to see how they answer.

[1] Full disclosure: I am a huge Jason Scukanek fan.  In an industry overly populated with over-the-top, hyperbolic narcissists, Scukanek and his co-anchor Isaac Ropp regularly broadcast calm, insightful and entertaining sports commentary.  If anything, he’s the very antithesis of a shock-jock radio host, which I believe makes his comments on the subject all the more intriguing.

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