10-years on from NFL concussion settlement league still battling with insurers
Insurer docs disclosed league settled in part for PR reasons, NFL staged mock jury trial
Next month will mark the 10-year anniversary of the NFL agreeing to settle scores of head injury lawsuits brought by thousands of former players in a pact that as of December 11 had paid out $1.24 billion, not including hundreds of millions of dollars in testing costs and legal fees.
Since the agreement, the league has worked feverishly to keep the legal strategy leading up to the deal under wraps, repeatedly refusing to share certain documents on the subject with disgruntled insurers litigating over the hefty tab the NFL wants them to cover. The NFL even successfully petitioned the court this month to seal the insurers’ replies to the NFL’s motion to dismiss the case, checking off a box that the documents had confidential information.
The NFL settled the class action before discovery commenced, so what the league knew about the dangers of head injuries did not emerge. The insurers in part want to know if the league had “knowledge” of the alleged long term neurological risk of playing football, which could invalidate coverage, and settled to not have that dribble out.
“The second justification proffered by the NFL Parties for not sharing privileged information was that the information could be used against them, for example, to support TIG’s `knowledge based’ coverage defenses,” wrote David Perry, an expert hired by insurer TIG in a report filed on the docket in recent weeks.
All depositions are sealed, and the NFL has even petitioned the court to take some citations of those closed door interviews out of public court filings from the insurers. The insurers claim the NFL afforded only read-only access (meaning no copies) to some documents after years of back and forth.
But some of that NFL strategy is dripping out as the 12-and-a-half year legal war with the insurers barrels forward. In court filings this month, the insurers vigorously argued the league leading up to the settlement internally voiced confidence in its legal position but settled due to public relations, and economic pressures from financiers. That means the insurers shouldn’t have to pay is their conclusion.
Perry writes in his report that during the deposition of former top communications executive Paul Hicks, the executive said he discussed with Commissioner Roger Goodell before the settlement that while the league was confident in its legal approach other concerns were more pressing
Hicks, Perry wrote, in “Discussing (a) conversation with NFL Commissioner Goodell about proposed settlement of the (head injury) Litigation during which he told Goodell `we can win legally on the merits, but we'd be losing public opinion because we'd be litigating for multiple years and it would be a distraction to the league and it would damage our growing player health and safety reputation, and so I'm all for settling. Then I remarked, `It's not my money.’ He laughed and left.”
The League also reviewed a plan to compel others to share in the cost of the settlement, including current insurers and team doctors. The insurers alleged in court filings they gained access to on a read only basis documents that disclosed a mock jury trial the NFL assembled to test out how its defenses would play out.
“The results of the mock jury exercise were supportive of one issue that was important to TIG: the viability of potential subrogation claims against the NFL teams,” Perry wrote (subrogation means one entity, in this case the NFL, passing its liability on to others). Quoting an email from a TIG official to an NFL lawyer in 2013, Perry added, “the report stated numerous times that potential jurors are receptive to the concept of team owners, coaches, doctors and the NFL Players Association also bearing responsibility in this context.”
“Indeed, the consultants hired by the NFL Parties indicated that one of the NFL Parties’ best defenses might be that `others, and not the NFL, encouraged aggressive play and, as such, the NFL should not be held responsible for what those other parties and doctors failed to do to protect those players.”
In January 2014, the NFL and plaintiffs attorneys filed their revised settlement with the federal court, making it uncapped after the federal judge the previous year rejected one that would have put a $875 million ceiling on payouts. The NFL agreed to the deal while it waited for a decision on its motion to dismiss that argued the players' contracts had arbitration provisions, which the judge could have ruled pre-empted the litigation.
The NFL had several other arrows in its defense quiver, including that the plaintiffs could not prove the NFL caused their injuries as opposed to college football or earlier stages of the tackle game
The insurers argue those were solid defenses and they should not have to cover a settlement reached for PR purposes.
The sides are awaiting the New York state Supreme Court judge’s decision on whether to order the insurers to indemnify the NFL, rule the insurers don't have to cover the settlement, or let the case proceed to trial.