If Jonathan Martin is looking to get back at his alleged bully, Richie Incognito, Martin could consider doing what most Americans do when they have suffered harm from the misconduct of another -- file a lawsuit. Fortunately for Martin and unfortunately for Incognito, the law of Florida has just what Martin needs as a basis for a formidable lawsuit.
A Florida law -- Evidencing Prejudice While Committing Offense -- provides the legal foundation for a civil lawsuit that would seek to assess monetary damages against Incognito. It provides for money damages for anyone who "has been intimidated or threatened" on the basis of "race or color." News accounts indicate there is little doubt Incognito has been threatening and intimidating Martin for many months, and that a portion of his attacks were based on race.
Incognito's use of the N-word and his threats "to kill" would appear to qualify Martin for money damages at Incognito's expense.
It gets even better for Martin. The Florida law provides for triple damages -- yes, triple damages -- and would allow Martin to collect his legal fees from Incognito. These provisions could produce a significant jury verdict for Martin at Incognito's expense.
Martin's current salary is a bit more than $600,000. If he were to return to the NFL and enjoy a typical career as an offensive lineman, he would be expected to earn another $5 million or $6 million. If his career is worth $5 million, and Incognito's threats ended the career, Martin could collect as much as $15 million. Legal fees could be added to the jury award and push the total close to $17 million. Martin's career under this Florida law may be more valuable in court than it is on the field.
Martin must, of course, first sue and then prove all of this in front of a jury in South Florida. Incognito's text messages and voice mails would be powerful proof of the threats and intimidation. Like any other civil damages case involving loss of income, Martin would be able to prove his loss with expert witnesses and NFL officials.
Juries in South Florida are diverse and would be receptive to Martin's claim.
Martin could also decide to sue the Miami Dolphins, but such a lawsuit would not be as strong as a suit against Incognito. The first thing that the Dolphins would argue is that Martin's only possible claim against the team is under workers' compensation or under the collective bargaining agreement grievance procedure. Either could be the end of the Martin claims. But if Martin could somehow show that these incidents are not under workers' compensation and were not contemplated by the CBA, then he has a shot.
To succeed against the Dolphins under this Florida law, Martin must show that Incognito's actions were part of his job as a veteran player. If the coach knew about it and did nothing about it, then Martin has a shot. He would argue that the coach's knowledge and acceptance of Incognito's behavior means that the behavior was part of Incognito's employment. If it were part of Incognito's employment, the Dolphins would be vulnerable.
Back to Incognito, though: Would he have insurance to cover this kind of loss? No. It is impossible to insure against deliberate conduct such as sending threatening e-mails and texts. Insurance works only against careless or negligent conduct. If Martin chooses to file a lawsuit, he would be trying to collect from whatever assets Incognito has accumulated during his NFL career.
If Martin decides to try to return to the NFL, he would still have an interesting claim against Incognito. Instead of his loss of salary, Martin could demand punitive damages, an award of money that would send a message that Incognito's conduct is unacceptable.
At least to date, it is apparent that Martin has not been interested in settling things with Incognito by meeting him in the players' parking lot. Martin's parents are highly educated and his mother is a lawyer, and they may well decide that litigation is the answer.