By Dan Reynolds
Scenario: For years it went on, and we stood and cheered as they slammed into one another, drilling opponents into the grass and dirt, or worse, into unforgiving artificial surfaces.
We ate nachos and drank beer saying "Oooh!" and "Owww!" as defensive backs creamed receivers who dared to run a pattern over the middle or middle linebackers stopped fullbacks in their tracks.
But then it came time to pay.
Thousands of NFL players filed lawsuits against the league, alleging that the league knew about the effects repeated blows to the head would have on their right to live full, healthy lives after their short, glorified playing careers were over.
The carriers stood their ground as best they could, at first denying to even defend the league against the lawsuits it faced. But over time, the evidence became insurmountable and the public's view of the sport shifted.
Studies that went back years showed that repeated blows to the head exponentially increased the chances that a player would suffer permanent brain injuries and accompanying psychological distress.
Stories like the cruel, inhuman fate that befell "Iron" Mike Webster, the Hall of Fame center for the Pittsburgh Steelers, who died broke, disoriented and alone in a motel room, plagued our collective consciousness.
The fact that at least 10 NFL player suicides were connected to brain damage from repeated concussions gradually turned public opinion.
One of those players, Junior Seau, was one of the most popular players in NFL history. The fact
that such a dynamic athlete shot himself in the chest at the young age of 43 seemed to signal that some kind of change had to come.
The day after his death, his mourning fans swarmed the beach outside of his Oceanside, Calif., home to pay him tribute.
Once the courts ruled that the carriers indeed had a duty to defend, the carriers braced themselves for the coming battles.
Caps on a per-occurrence basis that were put in place after the asbestos litigation would help, but there were thousands of players involved in the NFL litigation and there were more lawsuits lining up every month.
None of it turned out too well for the league or its carriers.
Courts ruled that the NFL was responsible to the players that had made the league billions. Juries decided that the league should have done more.
They found that not only did the NFL know that the big hits on the field were causing permanent head injuries, it knowingly cultivated a culture that glorified violence. NFL Films had been putting out movies for years that celebrated the crushing hits that left quarterbacks and other players lying helpless on the ground.
The hundreds of millions in payments that the league and its carriers shelled out were just the beginning. Once it was established that every organization
that hosted a football game should have done a better job of warning its players, even more lawsuits rolled in.
Not just professional leagues but colleges and universities and their carriers were on the defensive. Where the jurisdiction allowed it, public
school districts came under attack.
In jurisdictions where the public schools were shielded from litigation, the lawsuits were filed against individuals, either football coaches or athletic department heads, who by virtue of their professional status were in a position to know the difference; that the young people they were sending out on the field should have been better educated and better protected.
Over time, not just football, but hockey began to wither away at the high school and collegiate level. Populous communities outside of major cities that had once boasted of a half-dozen youth football teams saw the sport practically vanish.
The NFL and the NHL lived on, but not without having to operate in an entirely new universe of liability and protection. Insurance policies in this area became far more complex and expensive.
Never again would violence be glorified as part of pubic entertainment.The extreme fighting leagues that surfaced in the early 21st Century would vanish without a trace.
Analysis: The lawsuits filed against the NFL by its former players have gotten the attention of sports insurers like few cases ever have.
"Everyone is following the NFL story," said A.J. Morgan, a senior vice president with Bollinger Sports Programs, based in Short Hills, N.J.
"If you are in the sports insurance business, you definitely want to follow it," he said.
Of course, no one can know for sure how the current set of lawsuits filed by players against the league, or the league against its insurance carriers, will play out.
But according to one observer, the fact that insurance carriers are arguing that they have no duty to defend the league signals something.
"It seems to me reasonable to assume that the NFL would at least be owed coverage defense under the principle that the duty to defend is broader than the duty to indemnify.But the insurance industry has denied even their obligation to defend, let alone cover the risks." said William Wilt, president of Assured Research, an insurance consulting firm based in Madison, N.J.
An insurance attorney who recently litigated a case, California vs. Continental, in the California Supreme Court that may yet bear on the NFL concussion litigation, said carriers will be hard-pressed to deny not only a defense but coverage for indemnity.
In what is now known as the Stringfellow decision, the California high court ruled that a number of insurance companies that provided consecutive insurance liability policies would each potentially have to pay up to the limit of each policy, and not just a portion of each policy.
"If you are selling liability insurance to an NFL team, what the heck are you insuring if not for an injury claim by one of the players?" asked Bob Horkovich, the New York-based shareholder with Anderson, Kill & Olick who litigated the Stringfellow case on behalf of the policy holders.
Horkovich and others mused that the potential liability faced by the NFL and its carriers could extend, not only to university and high school level football programs but to other sports as well.
Ice hockey is another sport where a pervasive concussion issue is getting media attention.
Hockey professionals have been quoted in the media making links between hockey's fighting culture and the tendency of its players to suffer concussions after "enforcers" such as Wade Belak of the Winnipeg Jets and Rick Rypien, who played most of his career with the Vancouver Canucks, ended their own lives in the past couple of years.
Dave Chmiel, a Chicago-based senior vice president and director of claims for Hub International, told Risk & Insurance® in an e-mail that he believes more lawsuits are coming and that major changes are in the offing for professional sports teams and leagues, and for their risk management relationship with their insurers.
"As data and research continue to be dedicated to the cause of head injuries, I see an additional threat of numerous lawsuits down the road," Chmiel wrote.
"I also see new and and more complex and costly insurance policies written to adapt to the ever-changing environment of the professional athlete," Chmiel added.
But whether the litigation and exposure risk that the NFL and its carriers are now battling will trickle down to other leagues and organizations is a matter of debate.
Bollinger's Morgan feels that state statutes that were put in place after a catastrophic injury to Zack Lystedt, during a middle-school football game in the state of Washington, will limit exposures for schools and community football leagues like Pop Warner.
Of the Washington State law, now known as the Lystedt Law, which requires that training and procedures be put in place for amateur athletic programs so that coaches, parents and players can better monitor and protect against repetitive head injuries, Morgan said: "There is a big movement to make it a federal law and that is going to, I think, protect a lot of amateur sports organizations from what the NFL is facing."
As many as 35 states have now adopted the law.
Rob DiUbaldo, a New York-based attorney with Edwards Wildman, said courts may look at nonprofits differently than they do the NFL, with its billions in annual revenue.
"I think a judge or jury may be more sympathetic if a nonprofit or a small middle school ended up as one of the target defendants in one of these lawsuits, as compared to a large multibillion organization such as the NFL," DiUbaldo said.
On the assumption of risk side, however, amateur leagues could be more vulnerable than the NFL, he said.
"I think that could be viewed differently between an NFL player and a 10-year-old who plays Pop Warner and whether or not the 10-year-old could be found to have the same level of knowledge as the professional player," DiUbaldo said.
However all of this plays out, it's likely that more and more protections will be put in place, and liability coverage, at least at the professional level, is going to get more expensive.
DAN REYNOLDS is managing editor of Risk & Insurance®. He can be reached at email@example.com.
April 12, 2013
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