Tackling The NFL

06.03.14

Should Dan Marino Have Sued the NFL Over Concussions?

The brain disease at the heart of many players' legal cases against the league—Chronic Traumatic Encephalopathy—was virtually unknown prior to 2002.

The fact that Dan Marino was suing the National Football League over concussion-related injuries will do much to propel this important issue back into the spotlight again.

The legendary Miami Dolphins quarterback ranks among the elite all-time NFL quarterbacks and played in the league from 1983 to 1999. Heck, I even remember his cameo in Ace Ventura: Pet Detective back in the early '90s —this guy was a hero back when I was a kid. But Marino’s achievements on the gridiron are not what landed him in the national news this week. 

Rather, Marino joined more than 40 Pro Hall of Fame football players, or their estates, and roughly 5,000 former NFL players suing the league over concussion-related injuries. Marino’s withdrw his lawsuit Tuesday after it came to light late Monday. Though I haven’t seen the legal documents themselves, word is that they allege Marino suffered “repetitive, traumatic sub-concussive and/or concussive head impacts” and was asking for “medical monitoring and unspecified financial recovery.” It also alleges the NFL deliberately concealed information about head and brain injuries sustained on the field and failed to appropriately inform players and families.

The NFL vehemently refutes these claims.

I don’t doubt the idea that Marino likely suffered a wide variety of injuries, many of which were related in nature. However, this suit really boils down to less about concussions, and more about the legality of informed consent.

Players like Marino are suing on the basis of similar claims made by players who received a settlement back in December.

Today, in 2014, there is significant data implicating repetitive head injuries in the development of Chronic Traumatic Encephalopathy (CTE), a disorder characterized by permanent changes in brain structure and function. Researchers are beginning to draw links between CTE and the accelerated onset of other neurodegenerative disorders such as Alzheimer’s and Parkinson’s, as well as neuropsychiatric disorders such as depression and post-traumatic stress. However, physicians have only recently begun to truly understand and develop a consensus on the danger of repeated head injuries.

Today, we know that athletes are reluctant to report symptoms of concussion—feelings of dizziness, nausea, memory loss, and headache—while competing or practicing. This, combined with financial incentives and cultural factors, all contribute to a concussion culture in contact sports, including football. Modern science and technology has revealed that repetitive concussions, or even sub-concussive hits, amplify upon one another—contributing to the risk of developing lifelong neurological and mental challenges, including CTE.

A search of PubMed, the central database for medical literature, for “Chronic Traumatic Encephalopathy” yields 127 results, with only 6 articles published before 2002. All 6 of these deal exclusively with boxing. This is to say, the understanding that we have now is clear. In sports like football, where athletes are at high risk for repeated head impacts, long-term effects are a definitive danger.

However, the understanding of concussion and CTE while Marino was tossing touchdown passes simply did not exist. I’m sure there are many scientists and physicians who will refute this argument, but unfortunately back in the 80s, we didn’t have a consensus, nor a voice. Thus even though we do not know what exactly the NFL may or may not have shielded, any retroactive suit must be evaluated in the context of the science at the time.

Should Marino and the thousands of ex-players receive appropriate care? Without a doubt, yes. The importance of protecting players from the neuropsychological effects of a career filled with multiple blows to head are becoming clearer each day.

However, suing the NFL on the basis of what was a vaguely defined syndrome at the time does not seem to be the most effective means of achieving this. Unless there was a landmark study that the NFL completed and hid the results of, I find it hard to substantiate a failure in contract disclosure from back in the 80s.
Moving forward, the NFL must take into account the findings of modern science to ensure that its players are not unduly at risk, or understand and consent to danger. Today’s contract negotiations should make explicit the significant risk associated with repetitive head injuries, concussions, and the way they can lead onto other disorders.

But litigation divides. What former and future athletes need is a unified effort—the league, the players, doctors, and scientists—working to find ways to heal those suffering from CTE and prevent it in those who want nothing more than to be the next Dan Marino.