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Hall of Fame quarterback Dan Marino has joined the nearly 5,000 retired NFL players to sue the NFL over concussions and long-term neurological harm. The former Miami Dolphins star, along with 14 other retired NFL players, filed a lawsuit on May 28, 2014 in the U.S. District Court for the Eastern District of Pennsylvania. This is the same federal court where the consolidated concussion lawsuit against the NFL is being heard by U.S. District Judge Anita Brody. Attorneys for Marino and the other 14 players are also attorneys in the consolidated case. Marino's case, Bishop et al. v. NFL, is functionally identical to other concussion litigation and will likely become part of the consolidated case.
Marino, 52, is an intriguing person to sue the NFL. The complaint does not allege that he has suffered a specific long-term neurological injury, instead asserting that some of plaintiffs have suffered an increased risk of long-term illness from playing in the NFL. Until CBS dropped Marino from its pregame show The NFL Today in February, Marino had enjoyed a successful post-playing career as an NFL broadcaster. Marino has also scored lucrative endorsement deals with major companies NutriSystem, Papa John's and Hooters.
He was most recently seen visiting fellow Hall of Famer quarterback Jim Kelly, who is hospitalized with cancer. By joining the concussion litigation, Marino arguably becomes the most prominent ex-star to take on the league. For young NFL fans, many of the retired players suing the NFL are older men who played in unfamiliar eras. Marino's broadcasting and endorsement career, however, makes him instantly recognizable to all fans and thus might catapult him to a celebrity role among plaintiffs.
NFL concussion litigation: No end in sight
Marino's lawsuit is a reminder that concussion litigation in the NFL is far from over. It has been nearly three years since Jim McMahon and six other players sued the NFL over concussions, a move that prompted an avalanche of other retired player lawsuits. To date, the concussion litigation remains unsettled and there is no end game in sight. In January, Brody stunningly rejected a proposed $765 million settlement between the league and the retired players. Even though the settlement had been agreed to by both sides and also recommended by a neutral mediator, Brody reasoned that the settlement lacked sufficient data to prove that enough money would be available for the potentially 20,000 retired NFL players and their families. Six months later, Brody awaits the league and retired players to propose another settlement. If no settlement is reached to satisfaction of Brody, pretrial litigation will resume.
It may be difficult to reach a settlement in NFL concussion litigation. The thousands of retired players suing the league span different stages of life, with varied conditions and wide-ranging healthcare costs. Some are comfortable financially, others are in financial distress. Determining acceptable formulas for assigning and distributing money to retired players appears highly challenging.
Even if the consolidated concussion case ultimately settles, NFL concussion litigation will continue for years. Some retired players would likely opt-out of the settlement and sue the NFL on their own. This process could play out over years, with the NFL in a state of perpetual concussion litigation. The league would likely treat concussion litigation as an ongoing expense, similar to other types of litigation the league regularly faces. This strategy would likely be true of other health-related litigation, such as the recent painkiller lawsuit against the NFL.
A scouting report on what to expect in an NFL concussion trial
If concussion litigation goes to trial, the players' core thesis to jurors would be that the league fraudulently concealed the risks of concussions. This argument would be advanced by citing specific actions or omissions by the league. Marino's lawsuit, for instance, emphasizes how NFL coaches allegedly instructed players to tackle and block with their helmets, thereby increasing damage to players' brains. Like other concussion lawsuits, Marino's lawsuit also portrays NFL physicians as willfully promoting false science to obscure the link between playing football, concussions and long-term neurological injury. These are damning accusations and they depict the league as callously dismissing players as replaceable cogs in the NFL's billion-dollar machine.
The NFL's defense in a concussion trial would be multifaceted. The league would insist players' claims are barred by terms contained in collective bargaining agreements that the NFLPA willingly negotiated and signed. While much of the blame for retired players' health conditions has been directed at the NFL, the NFLPA's responsibility would receive far more scrutiny in a concussion trial. The NFL would also insist that players assumed an obvious risk of neurological danger by playing in the NFL, where on every play very large and strong men collide with one another at full speed. The league would similarly raise questions about causation, especially since before his first NFL snap, a rookie NFL player has already played thousands of downs in games and practice during college, high school and Pop Warner football. NFL attorneys would surely argue, "Who's to say when a player's neurological injury occurred while playing football -- if it even occurred while playing football?" Statute of limitations, the league would contend, also bar some of the players from suing the NFL decades after their careers ended.
The NFL clearly hopes to avoid a concussion trial, as it would risk a massive public relations disaster for the league and its teams. Still, the concussion controversy hasn't seemed to have harmed the league's image with fans. The NFL continues to set record television ratings for games and even the NFL draft, thus suggesting that fans are able to separate their concern for retired players' health with enjoyment from watching current players inflict big hits on one another.
Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.