Dan Marino Files Concussion Lawsuit Against NFL
Last week, Dan Marino, the retired Hall of Fame quarterback of the Miami Dolphins, filed a lawsuit along with 14 other former NFL players alleging that the NFL hid the dangers of concussions in order to get players back on to the field. Marino's complaint accuses the NFL "actively, aggressively and deliberately conspired with its team members and/or independent contractors who were directed to continuously discount and reject the causal connection between multiple concussions suffered while playing in the NFL, a non-scientific return-to-play policy for players suffering concussions and the chronic long-term effects of those head injuries." These allegations parallel allegations made in 300 other lawsuits filed on behalf of more than 4,500 players. Marino's attorney in this suit is Sol Weiss, who currently serves as co-lead class counsel in the class action.
Last August, it appeared that there was a global settlement to the NFL concussion litigation. The cases had been consolidated for pre-trial proceedings in front of Judge Anita Brody of the United States District Court in Philadelphia, who had ordered the parties to attempt to negotiate a settlement. After months of negotiations, the parties came to an agreement for the NFL to pay $765 million for compensation ($675 million) and medical monitoring plus legal fees (up to $112.5 million). The settlement set forth a schedule of payments that a player (or his family) would receive that depended upon the Qualifying Diagnosis that the player received over the next twenty years. For example, a player diagnosed with Parkinson's Disease would receive up to $3.5 million and those diagnosed with ALS (Lou Gehrig's Disease) would receive up to $5 million. A player would have the option to "opt out" of the settlement, and pursue an individual lawsuit against the NFL. The agreement, like all class actions settlements, was subject to approval by the judge.
In January 2014, Judge Brody rejected the settlement, because of her concern that "not all Retired NFL Football Players who ultimately receive a Qualifying Diagnosis or their related claimants will be paid." Specifically, Judge Brody stated that she feared that the $675 million compensation fund would be depleted before twenty years by the large payments mandated for the various Qualifying Diagnosis. "Even if only 10% of Retired NFL Players eventually receive a Qualifying Diagnosis, it is difficult to see how the Monetary Award Fund will have the funds available over its lifespan to pay all claimants at these significant levels." Judge Brody held that she would not approve the settlement without receiving the analysis that plaintiffs' counsel had economists conduct "to ensure that there would be sufficient funding to provide benefits to all eligible Class Members given the size of the Settlement Class and projected incidence rates." Judge Brody held that she would again consider the settlement after she received the analyses.
Dan Marino's "me too" lawsuit against the NFL - filed after six months of quiet on the class action settlement front - is an omen of big events in the class action. Some have speculated that because Marino is represented by one of the two plaintiffs' Co-Lead Counsel, this is a sign that the settlement is about to approved. Sol Weiss was quoted, "“We continue to work at the direction of the Court and Special Master as they review the settlement agreement and rightfully ensure that all members of the class are protected.” The other possibility is that the settlement is about to fall apart, and Marino filed against the NFL to be in position when the case moves towards trial.
EDIT: Shortly after the Marino lawsuit became public, Marino announced that he had not intended to be named as a plaintiff and that he would withdraw from the suit. This link takes you to my CNBC appearance discussing Marino's withdrawal.