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Legal Look: Dan Marino sues the NFL

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Eric Macramalla, TSN Legal Analyst
6/3/2014 1:35:24 PM
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Hall of Fame quarterback Dan Marino has filed his own NFL concussion lawsuit. Marino, along with 14 other players, filed the lawsuit on May 28 in the U.S. District Court for the Eastern District of Pennsylvania.

Marino joins a little under 5,000 retired NFL players and their families that have sued the league across approximately 225 concussion lawsuits. There have been many notable players that have filed lawsuits, including Tony Dorsett, Eric Dickerson, Mark Rypien, Tony Mandarich, Art Monk, Jim McMahon and Jamal Lewis, as well as the estate of the late Junior Seau. None, however, are as well known as Marino.

The key allegation raised by Marino is the NFL concealed information. He is arguing that the NFL knew of the long-term neurological impact of headshots but failed to share those findings with the players. This issue of fraudulent concealment was also alleged in the other concussion lawsuits so it's not new.

It's tough to know if Marino will succeed as everything turns on the evidence presented at trial. To win, he will need to show that the NFL had key and important information about the long-term and devastating impact of headshots and concealed it.

The NFL, however, has certain defences available to it. First, it can argue that players were aware of the risk associated with playing football and they agreed to those risks each time they stepped onto the field. The NFL would also maintain that they didn't conceal anything. As well, the NFL could point out that no one can say for sure what caused a player's dementia, and even if it was caused by repeated headshots while playing football, how much of that damage was sustained outside the NFL in places like college or high school ball. So what caused the dementia and when it was caused become key issues.

The NFL can also argue that Marino's lawsuit doesn't belong in court in the first place, but rather should go to arbitration. The collective bargaining agreement provides that issues of player health and safety go to arbitration and not court. On the flip side, Marino would argue that since this case involves fraud in the form of concealment, it properly falls outside of arbitration and within the jurisdiction of the courts.

Bottom line is this: both sides face challenges in this case and that's where we generally see settlement.

All this is probably moot, as the league is working on finalizing a global settlement of these cases. You may recall that back in July 2013, the league announced it had settled the concussion lawsuits with the players. The negotiated settlement was for $765 million and would bind every retired NFL player, of which there are about 19,000. You should note, though, Marino is included among these players. So that means that Marino didn't need to file the lawsuit at this time.

As well, while settlement was indeed announced, it was not finalized. Before the NFL can consider the case closed, the Court has to approve the terms of settlement. The problem is that on two separate occasions the Court has rejected the settlement on the basis that there is insufficient money to pay all players.

As well, even if the Court were to approve the settlement, any of the 19,000 players would have the option to opt-out of the settlement agreement. If a player believes that he can do a lot better filing his own individual lawsuit, he would tell the court and the NFL thanks but no thanks, I'm headed to court.

The Marino lawsuit may suggest that he is tired of waiting around for a payout from the proposed settlement and wants to take matters into his own hands.

Whatever Marino's motivation, these concussion lawsuits are likely to continue for years. In the event a global settlement is approved by the Court, it seems likely that a number of players will opt out and file their own lawsuits.

Indeed, there is still a lot of track to cover.

Dan Marino (Photo: Dimitrios Kambouris/WireImage for Samsung)

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(Photo: Dimitrios Kambouris/WireImage for Samsung)
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