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Legal Look: Why Marino withdrew from concussion lawsuit

Eric Macramalla, TSN Legal Analyst

6/4/2014 10:36:59 AM

The news broke on Tuesday that on May 28, Dolphins Hall of Fame quarterback Dan Marino, along with 14 other retired NFL players, filed a class action concussion lawsuit against the NFL. I wrote about it here for TSN.

The news also broke on Tuesday that Dolphins Hall of Fame quarterback Dan Marino was withdrawing from his concussion lawsuit against the NFL.

So why the change of heart? Probably a couple of reasons.

First, Marino has reportedly been speaking with the CEO and President of the Dolphins Tom Garfinkel about joining the team's front office. Clearly, filing a lawsuit against the NFL would jeopardize his chances gaining employment with the Dolphins. The Dolphins, along with the rest of the NFL teams, will ultimately be responsible for paying out whatever money is owed to the players as a result of the concussion lawsuits. Having a plaintiff as an employee in that circumstance would be a bit awkward.

So given Marino's ambitions to join the Dolphins in an executive position, the timing of the lawsuit was unusual. Before suing someone, the potential personal and professional impact of that lawsuit on the client is assessed and discussed in great depth. In this case, the potential fallout was inescapable.

The timing of the lawsuit was a surprise for another reason. In August 2013, the NFL announced that it had settled the over 220 concussion lawsuits involving nearly 5,000 former NFL players and their families. The league agreed to pay the players nearly a billion dollars in exchange for the players dropping their lawsuits. Before a settlement is finalized, however, the Court has to approve it. To date, it has rejected the settlement twice. Once approved, though, the settlement would bind every single retired NFL player as of the Court approval date. Since Marino retired on March 13, 2000, that would include him.

So at this time, there was not a pressing need for Marino to sue the NFL. He was already covered by the potential NFL settlement. If for some reason he ends up being unhappy with the Court approved settlement (if and when that day comes), he could simply opt out of the settlement and file his own lawsuit. Every player will have that right to walk away from the Court approved settlement and file their own lawsuit.