The sudden resignation of Jonathan Martin from the Miami Dolphins two weeks ago, and the indefinite suspension of his teammate, Richie Incognito, by the NFL, have drawn attention to the locker-room culture at American football clubs and the practice of “hazing” rookies.
Martin’s case is concerning. It is alleged that he was physically attacked by his teammates and subjected to constant verbal harassment, including racist slurs and threats of violence. Incognito admits leaving a voicemail for Martin in which he called him a “half-n—-r piece of s—” and made threats of violence against him and his mother. He has denied bullying and racism however, asserting that his language was commonplace and acceptable in the context of the Dolphins locker-room, and resulted from a “culture of brotherhood” amongst the team. A number of his current teammates have in fact publicly supported Incognito over the allegations.
The Dolphins’ management has also come in for criticism over Martin’s resignation. Reports have surfaced that coaches told Incognito to “toughen Martin up”, although the Dolphins’ Head Coach has said he was unaware of any bullying or hazing of his players.
An NFL investigation into the allegations of workplace harassment at the Dolphins is now underway and the club’s owner has set up a committee to draft a code of conduct for its locker-room.
In the UK, initiation rituals and dressing-room chat of the type that Martin was allegedly subjected to in Miami are likely to amount to unlawful harassment. UK clubs should be alert to their potential liability under both the Equality Act 2010 and the Protection from Harassment Act 1997 for the harassment of their players by their teammates or coaches.
If the acts of harassment were carried out by a fellow employee of a club, the club would not need to know or consent to the unlawful conduct for liability to attach to it under the Equality Act (s.109). Nor do the acts of harassment need to be conducted during working time or on work premises for an Employment Tribunal to hold a club vicariously liable for them (Chief Constable of the Lincolnshire Police v Stubbs [1999] ICR 547, EAT).
Liability can however be avoided, if a club has taken all reasonable steps to prevent the harassment of its players (s.109(4)). It is suggested that that would require management to have actively intervened in the dressing room. The club must ensure that both players and coaches are aware of what types of behaviour are unacceptable and implement policies to deal with any complaints of harassment. Where a player or coach’s conduct crosses the line, management should take steps to discipline that individual and review its policy for handling incidents.
