For many, the news that Dan Marino and others had filed a concussion lawsuit against the NFL prompted curiosity as status of the proposed settlement of all concussion claims by former players, negotiated more than nine months ago.
Filed in the same court where the global settlement is pending, the Marino suit creates the possible impression that the latest group of players has decided to quit waiting for whatever benefits may be available under the settlement and force the issue on their own.
But there’s another way to look at it. The Marino lawsuit was filed by Sol Weiss, one of the primary lawyers representing all of the concussion plaintiffs. The decision by Weiss to file the lawsuit now, in the court where the bulk of the concussion lawsuits are pending and where the settlement was negotiated last August, could be proof that Weiss expects the settlement to be approved fairly soon.
By adding 16 players to his total roster of concussion clients, Weiss could be in position to claim a larger slice of the award of attorneys’ fees, when the time comes for the lawyers to carve up the total pie of attorneys’ fees. Thus, a fair interpretation of the events could be that Weiss knows (or at least senses) something about the looming approval of the settlement, and that he expects the motion for preliminary approval to be granted sooner rather than later.
Marino’s involvement necessarily creates more attention for the new lawsuit. But because all retired players are included in the proposed settlement, Marino didn’t need to file suit. And because Weiss helped broker the settlement, there’s no real reason to think Weiss aims to go rogue with a 16-player group of plaintiffs.
It’s also fair to infer that Marino, who previously worked for one of the NFL’s primary broadcasters (CBS), chose not to create a potential problem for his employer by biting the hand that was taking all that money from CBS during Marino’s tenure there.
Some are now using Marino’s past comments on concussions against him. Ed Werder of ESPN pointed out via Twitter that, in an interview conducted last year, Marino said, “When I went out there to play, I knew there was a chance I could get a concussion.”
Still, knowing there’s a risk of brain injury and understanding the full extent of the consequences of a brain injury, especially a supposedly “mild” one, are two different things. Any player with a functioning brain and general familiarity with the concept of a concussion knows there’s a risk of suffering a concussion when playing football. The concussion lawsuits focus on the argument that the NFL knew much more than the players about the risks of having a concussion and failed to share that information.
For now, the philosophical debate doesn’t matter. Marino’s rights under the proposed settlement are no different if he did or didn’t file suit in his own name. If Marino were looking for a way to avoid his rights under the proposed settlement, he wouldn’t have filed suit in the same court where the global settlement is pending, represented by one of the main lawyers who worked out the deal.
And now that I’ve likely confused you thoroughly, carry on with your day.