Bullying in professional sports: Adapting to an evolving legal landscape and mitigating riskMichael Gregg
In this article Michael Gregg, evaluates the legal risks of bullying in professional sports using the recent Miami Dolphins scandal. Michael suggests some key points that employers in professional sports should take to mitigate the risk.
In light of recent well-publicized events involving Miami Dolphins football players, bullying in the workplace, including professional sports, has become a hot button topic. Such events have caused many to reevaluate the need for proactive measures to address bullying in the workplace.
Hazing and/or bullying in professional sports is not a new phenomenon. In a recent Associated Press article, former National Football League (NFL) quarterback Joe Montana said bullying in the NFL was common when he played. Hazing or bullying in professional sports typically involves activities such as rookies carrying the equipment of veteran players, being duct-taped to goalposts, paying for expensive team dinners, getting unflattering haircuts, wearing silly costumes, singing and entertaining senior players on demand, or being dumped in a cold tub. As bullying is not expressly prohibited by the collective bargaining agreements (CBA)1 of the major sports leagues, professional sports teams may be well served to adopt rules prohibiting hazing and bullying and to implement a complaint mechanism to address such conduct.
The collective bargaining agreements
The CBA of the major sports leagues do not expressly prohibit bullying or hazing.
Article 42 of the NFL's CBA allows teams to suspend players for a maximum of four weeks without pay for "conduct detrimental to [the] club." While the term "conduct detrimental to [the] club" is not defined in the CBA, it arguably includes bullying or hazing. In addition, the mandated player contracts that must be used for all players under the CBA provides that the NFL Commissioner may fine, suspend, or terminate a player's contract if such player is guilty of "conduct reasonably judged by the League Commissioner to be detrimental to the League or professional football. "It is unclear whether hazing or bullying would be considered detrimental to the "integrity of the game."
Similarly, Article XII Major League Baseball's CBA provides that players "may be disciplined for just cause for conduct that is materially detrimental or materially prejudicial to the best interests of Baseball including, but not limited to, engaging in conduct in violation of federal, state or local law."
Article VI of the National Basketball Association's CBA gives teams the right to terminate a player's contract if the player fails to "conform his personal conduct to standards of good citizenship, good moral character (defined here to mean not engaging in acts of moral turpitude, whether or not such acts would constitute a crime), and good sportsmanship..." While the bases for terminating a player's contract under this provision appear broad, it does not provide a strong incentive for teams to terminate a player's contract for hazing or bullying because, before terminating a player's contract under this provision, any other team may claim assignment of the player's contract.
Finally, Article 18 of the National Hockey League's CBA provides that the Commissioner may suspend, fine, or cancel a player's contract if the player is guilty of conduct that is "detrimental to or against the welfare of the League or the game of hockey..."
These broadly defined provisions arguably provide the leagues and teams vast discretion with respect to prohibited player conduct.
Federal state and the law
Although the CBAs discussed above do not expressly prohibit bullying, teams and players may be legally liable for such conduct. Title VII of the Civil Rights Act of 1964 makes it unlawful to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." If mistreated employees who have been subject to abusive treatment at work can show that the behavior was motivated by a protected category such as race or gender, such behavior may be unlawful under Title VII and similar state laws. Even if the hazing or bullying does not involve a protected category, tort claims such as intentional infliction of emotional distress or negligent supervision may be available to an aggrieved employee. For example, in 2008, the Indiana Supreme Court recognized that workplace bullying could be considered a form of intentional infliction of emotional distress. Raess v. Doescher, 883 N.E.2d 790 (Ind. 2008). What conduct can give rise to a tort claim will depend on the factual circumstances and the legal standard in the relevant jurisdiction. A federal district court recently noted, for example, that "a work environment in which coworkers or supervisors criticize, taunt, or harass another employee, does not present the egregious conduct required for an [intentional infliction of emotional distress] claim." Murdock v. L.A. Fitness International, LLC, 2012 U.S. Dist. LEXIS 154478 (D. Minn. 2012).
Since 2003, twenty five states have introduced bills to prohibit bullying in the workplace irrespective of whether the bullying involves a legally protected category. To date, none of the bills have passed. In 2013, the following eleven states introduced workplace anti-bullying statutes: New York, Massachusetts, Florida, Hawaii, New Mexico, Wisconsin, West Virginia, Pennsylvania, New Jersey, Vermont, and New Hampshire.
If passed, the workplace anti-bullying bills would generally make it unlawful to subject an employee to "abusive conduct" or an "abusive work environment" and provide for a range of damages including reinstatement, medical expenses, front pay, back pay, emotional distress, and punitive damages, among other forms of relief. The bills also allow for "removal of the offending party from the complainant's work environment."
Under the proposed statutes, abusive conduct generally includes "acts or omissions that a reasonable person would find hostile" such as making derogatory remarks, engaging in conduct that is "threatening, intimidating or humiliating," and undermining an employee's work performance, among other things. Because abusive conduct includes "omissions," shunning or ignoring another employee may constitute abusive conduct under the proposed bills. In fact, the Hawaii bill references "social isolation" as a form of bullying. The New Mexico bill would make bullying a crime.
Passage of workplace bullying legislation could have a significant impact on employer responsibility for employee behavior. Employers could also face challenges policing such behavior as some states have recently passed laws restricting employer access to social media. For example, as of January 1, 2013, California law prohibits employers from requiring that employees disclose their social media password or ID, access personal social media in the employer's presence, or divulge personal social media content. Workplace anti-bullying legislation may also infringe on federal and state constitutional rights of free speech. For example, certain news and entertainment positions enjoy First Amendment protection and the anti-bullying statutes may violate the free speech rights of such employees. Of the eleven states that introduced workplace bullying bills in 2013, only West Virginia provides that expression protected by the First Amendment, including freedom of speech or religion, may not be considered abusive conduct.
Should the same legal standard apply to professional sports?
While the dynamics of a professional sports locker room are undeniably different from a corporate office setting, it is not clear whether the proposed anti-bullying bills would apply different standards in different workplace settings. A 2006 decision by the California Supreme Court suggests that otherwise inappropriate conduct may be acceptable depending on the workplace setting. In Lyle v. Warner Brothers Television Productions, 38 Cal.4th 264 (2006), the plaintiff worked as a writers' assistant on the television show Friends and claimed that the writers' use of sexually coarse and vulgar language, including recounting their own sexual experiences, constituted sexual harassment. In ruling that the comments and conduct did not constitute sexual harassment, the California Supreme Court said the nature of the writers' work to generate scripts for an adult-oriented comedy show featuring sexual themes was relevant to that determination. The United States Supreme Court has also said different standards apply to different settings. In Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81-82 (1998), the Supreme Court noted that whether conduct constitutes harassment "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. A professional football player's working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field-even if the same behavior would reasonably be experienced as abusive by the coach's secretary (male or female) back at the office. The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed."
As these cases illustrate, determining what conduct would be sufficiently abusive to constitute unlawful bullying in professional sports may depend on a "constellation of surrounding circumstances" and thus will not always be clear. For example, it is not unreasonable to question whether or not trash talking, taunting, or belittling another player during a game or at practice could constitute abusive conduct under the proposed anti-bullying bills. Would superfluous "in your face slam dunks" be considered abusive conduct? How about belittling another player's ability on national television? Because part of sports involves intimidating the opponent, the line between bullying and fierce competition is not always easy to define.
Actions teams can take to mitigate risk
While the CBAs of the four major sports leagues do not expressly prohibit hazing or bullying, they do allow teams to discipline players for conduct that is detrimental to the team or the sport. Accordingly, teams may mitigate risk by adopting a code of conduct outside of the CBAs that expressly prohibits hazing or bullying and warns players that such conduct may result in disciplinary action. While many may view hazing in sports as a rite of passage, professional sports teams may have a hard time justifying hazing when the United States military prohibits hazing and the stakes in the military are much higher than losing a game. The Marines' anti-hazing policy provides that "no Marine ... may engage in hazing or consent to acts of hazing being committed upon them." See Marine Corps Order 1700.28. Teams may also mitigate risk by implementing a complaint procedure for reporting hazing or bullying and providing training to players and coaches on their bullying and hazing policies. While practical jokes will always be a part of any work environment, professional sports or otherwise, communicating and enforcing a policy of professionalism and respect may also facilitate team building. Prohibiting hazing and bullying may also help foster a workplace of inclusiveness at a time when many view the culture of professional sports leagues as outmoded and in need of change.
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- Tags: Collective Bargaining Agreement | Discrimination | Employment Law | Equality | National Football League (NFL) | United States of America (USA)
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