Here Come The Suits
The alleged hazing/bullying/intimidation saga in Miami is in its second week of dominating the national conversation. It makes sense at this point to play out potential conclusions to this drama, as eventually there will be end games for all parties involved. Let's examine all of the stakeholders in this unfortunate episode and outline what might be next.
While head coach Joe Philbin’s comments to this point have been guarded, owner Stephen Ross spoke Monday night with conviction. He was unwavering in his support for two people: Jonathan Martin and Joe Philbin. Conspicuous by absence were any comments supporting, or even mentioning, Richie Incognito or general manager Jeff Ireland. Ross was establishing an internal group to assess the organization and a credible group outside the organization—Don Shula, Tony Dungy, Dan Marino, Jason Taylor and Curtis Martin—to develop a code of conduct.
Ross also was scheduled to meet with Jonathan Martin on Wednesday but postponed it out of deference to the NFL's investigation. When Ross and Martin do talk, it will go a long way toward determining what happens next with the organization. My sense is Ross will offer Martin a very sympathetic ear and react with potential changes in the organization depending on the information Martin provides.
The NFL investigation will take a deep dive into various levels of the organization, with interrogative sessions that will try to bring out the most thorough information possible. My sense is, as I wrote last week, that there are some layers in the organization that knew a lot about locker room behavior and interactions between Incognito (and others) with Martin. It is good to know that Ross is supportive of the NFL investigation; Ross and commissioner Roger Goodell appear to be working in concert here. Speaking of which…
Roger Goodell’s tenure as commissioner will be defined in good measure by the NFL Personal Conduct Policy. Goodell genuinely subscribes to the somewhat quaint notion that NFL players are role models and should be held to a higher standard. He has no reservations about legislating players’ behavior even if on their own personal time. Indeed, in the most recent CBA negotiations, Goodell was willing to cede appeal power for on-field issues and drug testing yet adamant about retaining control over player conduct.
Now, NFL player conduct—or misconduct—is part of the national conversation, and Goodell is cringing. He quickly appointed an independent investigation led by Ted Wells from the law firm Paul | Weiss—which also represented the NFL in recent concussion litigation—and has empowered them to cut a broad swath in their search for information and culpability. I would expect the search for truth to extend beyond the Dolphins, with potentially revealing interviews of recent Dolphins players such as Jake Long, Reggie Bush and Karlos Dansby.
Goodell genuinely subscribes to the somewhat quaint notion that NFL players are role models and should be held to a higher standard.
The challenge for Wells, however, might be reluctant witnesses. With no subpoena power, former and current players might see personal risk in sharing information and either decline to meet or be highly guarded in their comments. And Dolphins employees might be operating in survival mode, saying as little as necessary with a primary goal of staying employed.
The report, expected in two to three weeks, will be public; kudos to the NFL for this nod to transparency. Following the report, I would expect the NFL to establish mandatory protocols for all teams in creating and maintaining safe and tolerant workplace environments. Further, I would expect conspicuously placed codes of conduct and caveats demanding professionalism and respect in player and team interactions. And, depending on the results of the investigation, I would expect discipline to be handed out by Goodell, with Dolphins employees who might have allowed—or, worse, enabled—unprofessional behavior in his sights.
First, regarding Incognito’s interview with FOX’s Jay Glazer: I thought it was a credible and reasonable performance. However, Incognito is a survivor; he has been explaining away misconduct for years and should be good at it by now.
The Dolphins have suspended Incognito indefinitely for “conduct detrimental.” It's a catchall phrase that allows a team to discipline for egregious behavior. For example, when I was with the Packers, I remember discussing the conduct detrimental possibility when players were insubordinate to coaches.
Under the CBA, a conduct detrimental suspension can last a maximum of four games, and the player can be fined an additional week’s pay (thus a maximum of five weeks’ pay lost). At a $4 million salary, Incognito is losing $235,294 per week, saving the Dolphins potentially $1 million in cash and cap space. The CBA allows Incognito to file a grievance challenging such suspension, although there has been no indication he is doing so.
Assuming a four-game suspension, there will be a decision point following the Dolphins-Jets game on Dec. 1. The Dolphins could: (1) take Incognito back, presumably with behavioral conditions communicated to him and his agent; (2) take him back and deactivate him each week as further penalty, although that would create further discontent in an already-volatile situation; or (3) release him.
If Incognito is released and claimed, the claiming team would absorb the remaining balance of the contract (he is a free agent after this season) and take the Dolphins off the hook for termination pay due a vested veteran. If Incognito is released and unclaimed, the Dolphins would owe him the remaining balance of his $4 million salary as termination pay in a lump sum payment after the season. If unclaimed, Incognito could also "double-dip" by signing with a new team for salary on top of the Dolphins remaining obligation (ex-Bucs-turned-Vikings quarterback Josh Freeman is a current example of the double-dipping).
The Dolphins are wisely paying Martin his full salary of $607,466. However, having sought emotional and mental treatment, Martin could be placed on the Non-Football Injury list (NFI), a reserve category allowing the Dolphins to clear a roster spot and pay Martin an amount between zero and his scheduled $35,733 per week. With so much up in the air, I would expect Martin will continue to receive full salary, even if placed on NFI.
With the trading deadline having passed, Martin cannot be dealt until the opening of the 2014 league year in March. A trade might be a viable option, as it has been reported that Martin does not feel he can play in Miami again.
The Dolphins could also release Martin any time, where he likely would be claimed with an eye towards the future. A claiming team would inherit two years of reasonable salaries—$825,000 and $1.042 million—knowing the Dolphins already have paid the $1.92 million bonus. Once waived, the Dolphins would accelerate the unamortized bonus for a cap charge of $960,000.
While Ross will be as supportive as possible and certainly welcome back Martin, I sense Martin’s NFL future is elsewhere.
Martin and his parents (both Harvard-educated and attorneys) have retained sports attorney David Cornwell to advise and consult them on options through the process. Cornwell is working with Martin and his family to figure out the best course of action, whether through the CBA or applying external legal pressures.
Cornwell and NFLPA head DeMaurice Smith have an adverse history, dating back to when they were both finalists for Smith’s position. Now it is Cornwell, not the NFLPA, representing an NFL player who sought help due to mistreatment from a fellow player.
As with the bounty case last year—where the union must straddle constituents on both sides— Smith is trying to galvanize all players against a common enemy: management. Smith called out Ireland, referencing reports of the “prostitute question” to Dez Bryant a few years back: "We know the history of this general manger with other issues." Ouch.
The union has discussed pursuing their own investigation, but might face an uphill battle. It is hard enough to get cooperation with one investigation, let alone two.
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