Are the Patriots liable for Randy Moss’ conduct?

Randy Moss has been a good boy this football year–or, at least, he had been.  I don’t know, of course, what the truth is about the recent allegations that Moss assaulted a woman in her Florida home.  The timing of all this isn’t good for Moss or the New England Patriots, but given the year both have had, I’m guessing that they’ll get focused on their game against the San Diego Chargers and that the outcome of that game will be the same as that of previous Patriots’ games this season.

So what does this have to do with employment law?  Read on.

An employer is ordinarily liable for what an employee does in the scope of his employment.  So, if the woman had been standing on the sidelines, and after catching a pass with no defender around him, Moss had run off the playing field and slammed the woman to the ground, the Patriots could have a problem.

But Moss was in the woman’s home when this incident allegedly happened.  No problem for the Patriots–at least, as far as liability to the woman–right?  Well, let’s see.

There are a two or three legal theories that can make an employer liable for an employee’s conduct, even when the conduct occurs outside the employee’s scope of employment: negligent hiring, negligent retention and negligent supervision.  If an employer hires someone with a well-known background of engaging in violent or criminal conduct (like bumping a patrol officer with his car or being charged with drug possession) and then the employee assaults a third party, there’s a possibility that the employer can be liable under the theory of negligent hiring.  Or if, after hiring the employee, the employer learns of the employee’s past bad conduct and continues to keep the employee anyway, the employer could be liable under the theory of negligent retention or negligent supervision.

So, if Moss did what the woman claims he did, the Patriots could be liable?  Probably not.  When these theories have been successfully used, the employee was doing something connected with his job.  For example, a security guard rapes a customer in the parking lot.  The employer says we can’t be liable to the person raped because we didn’t hire the security guard to rape our customers.  He was acting outside the scope of his employment when the crime happened.  But–if the security guard had a history of violence, maybe a criminal record, and the employer didn’t do a background check or hired the security guard even knowing about the past behavior, the employer may be liable.

Moss was in the woman’s home, far away from the football field, so case closed?  Probably, but . . . . What if Moss was there with fellow teammates celebrating the season?  What if Moss and his teammates often went to the woman’s home or to someone’s home to celebrate?   What if the Patriots always picked up the tab for any expenses resulting from these celebrations?  What if Bill Belichick was with them?  Now, we have some facts (and I’m just making this stuff up) that could support a claim against the Patriots.

When you hire someone who’s been a bad actor in the past, you embrace one of the theories mentioned above.  It will still depend on the specific facts of the incident you’re accused of having liability for, but you at least need to know what you may be getting into from a legal standpoint.  If you’re hiring a Randy Moss, you may take a calculated risk and bite the bullet.  If you’re hiring a more regular kind of employee, you’re playing with fire.

1. 

   Bob S says:

   January 18, 2008 at 9:11 am

   When does the team as an employer have a right or even a duty to suspend or release[fire] the employee?

   Do they have an obligation to investigate and act even apart from the legal system?

   If the woman files criminal charges in addition to the protection order and civil lawsuit, does this change the employer’s duty?
2. 

   John Phillips says:

   January 18, 2008 at 10:06 am

   I don’t think what the woman files makes any difference as far as the employer’s duties are concerned.

   One of the issues here from an employment law perspective is what an employer can do about “off duty conduct.” It’s often argued that unless what the employee does is directly related to the employee’s job, it’s none of the employer’s business. The employer would be invading the privacy of the employee. Etc. etc.

   While the off duty rule is generally true, there are exceptions, in my opinion. In fact, some employers spell this out in their policies by saying that if an employee engages in conduct off duty that causes embarrassment to the employer or puts the employer in a bad public light, the employer has the right to take action against the employee, which could be a suspension or a termination.

   You ususally see this come up in the context of an executive’s conduct off duty. It’s not all that uncommon these days for a company to take action against an executive who has gotten in the paper for some boneheaded conduct that brings ridicule the company’s way and causes the company to question the executive’s judgment. You’ll also see this come up when a lower level employee gets arrested for something, and this makes the paper, and the employee is identified as an employee of the company. When it’s a lower level employee, whether he/she is a union member could also make a difference in terms of what an employer can do.

   With respect to the Patriots/Moss matter, the team has every right to find out what happened. You do that by talking to Moss, the woman (if she’ll talk to you), the woman’s lawyer (if she won’t), and other witnesses if there are any and by reviewing police reports and court papers that have been filed. As I noted in the original post, the thing the Patriots should be concerned about from a legal standpoint is whether there were other team members there or people in Patriots’ management or whether there was some kind of Patriots-related event going on at the womna’s home. If it was just Moss at a friend’s house, that should end any concern that the Patriots could be liable for Moss’ conduct.

   The Patriots could still decide we don’t want this kind of publicity, so Moss is suspended until the team gets to the bottom of this. Of course, that’s not going to happen.

   In terms of acting apart from the legal system, and employer does have a right to do this. That’s what I’m really talking about in terms of the bad publicity an employer gets. There’s really nothing legal about that. The employer just doesn’t want to be caught up in stuff like that.

   Bottom line: there’s not a clear cut answer in this kind of situation. An employer does have, in my opinion, quite a bit of discretion in deciding how to deal with a situation like this. Hope this helps. Thanks for weighing in.
3. 

   John Phillips says:

   January 21, 2008 at 8:59 am

   Thanks for the mention. Nice to be inlcuded with such a diverse number of posts.
4. 

   John Phillips says:

   January 21, 2008 at 9:25 am

   Another thanks for the mention of my post. To have a post mentioned in a blog about Public Devender Stuff and another one about Football is a first.
5. 

   John Phillips says:

   January 21, 2008 at 3:44 pm

   Thanks for the mention of my post. I’ll let my readers who are also sports fans know about your blog.
6. 

   John Phillips says:

   January 30, 2008 at 10:45 am

   I appreciate the mention of my post on the Patriots/Moss matter by this very diverse blog.
7. 

   John Phillips says:

   January 31, 2008 at 7:57 am

   The above blog, called “Thorny Path,” has a series of posts about Randy Moss. The post I did on the Patriots/Moss matter is included.