Photo Credit: Woodruff Health Sciences Center (2017). Emory physicians care for Atlanta Falcons on their journey to the Super Bowl. Available at: http://news.emory.edu/stories/2017/01/emory_docs_head_to_superbowl/ [Accessed 23 Feb. 2019].
By: Catherine Collins
Member, American Journal of Trial Advocacy
Introduction
Recently, ESPN released an article addressing an emerging issue which could potentially endanger the sport of football.[i] The article and coverage on ESPN’s Outside the Lines explains the dissolving insurance market in the contact sports realm regarding coverage for concussions and other head related injuries.[ii] The NFL no longer has general liability insurance covering traumatic head injuries, and only one insurance provider remains in the market for such coverage.[iii]
Proliferating concussion litigation has flooded the courts with class actions of former athletes and their spouses, alleging that the athlete died as a result of those injuries or was seriously impaired by the neglect of proper concussion protocol enacted by sports entities.[iv] One specific progressive brain disease, which has most recently been linked to concussions and head trauma, is chronic traumatic encephalopathy (“CTE”).[v] Though CTE was first described in 1928, it was not until 2005 when a pathologist published evidence of CTE after researching the brain of former Pittsburgh Steeler, Mike Webster.[vi] This brain disease is caused by “repetitive hits to the head sustained over a period of years” and is most often found in military veterans and contact sport athletes.[vii]
As a result of progressive CTE research and litigation surrounding head related injuries, insurance companies have analyzed the risk and exposure of covering concussion and other related head injury claims.[viii] Most insurance companies have discontinued their coverage of those risks.[ix] This discontinuation of coverage has affected businesses, non-profits, and individual’s access to proper insurance covering the defense and settlement of these types of claims in the football realm.[x] Though highly profitable football leagues like the NFL could potentially be able to sustain themselves without this insurance coverage, the lack of insurance has targeted programs not as highly profitable because of their inability to take on the risk associated with concussion liability.[xi] The existence of football may be threatened if the affected parties no longer have the access to necessary insurance.
Concussion-Related Settlements
The NFL has remained in the headlines, as ongoing concussion litigation settlements have been constantly an issue for the League. In In re National Football League Players Concussion Injury Litigation, the plaintiffs alleged that “the NFL had a duty to provide players with rules and information to protect them from the health risks—both short and long-term.”[xii] This class action asserted by former professional football players and widows of former players alleged specific short-term and long-term concussion related injuries, as well the players’ suffering from CTE.[xiii] The case settled, providing $1 billion to the named class of former players and families.[xiv] The court stated that the settlement “is a testament to the players, researchers, and advocates who have worked to expose the true human costs of a sport so many love.”[xv] Indeed, the court acknowledges not only that so many players and fans have a deep passion for football, but also that the emerging underlying issue of CTE and head-related injuries is a high cost related to the sport still being medically and judicially understood.[xvi]
Additionally, in 2016, a class action was brought against the National Collegiate Athletic Association (NCAA) by athletes alleging concussion and concussion related damages due to the manner in which the NCAA handled these injuries.[xvii] The plaintiffs argued that “the NCAA failed to promulgate and implement the rules and regulations necessary to safeguard student-athletes from sustaining such injuries and to diagnose them properly.”[xviii] Here, the settlement plan is projected that NCAA would pay a total of $75 million, but this settlement does not go to the individual class members.[xix] The settlement proposes NCAA pays $70 million for a Medical Monitoring Program, which “entitles all class members to be screened for symptoms of neurodegenerative diseases multiple times during a fifty-year period . . . in order to assess whether the concussive or subconcussive impacts the individual experienced as a student-athlete may have resulted in a neurologic condition.”[xx] An additional $5 million is expected to be paid as additional funds for concussion research during the first ten years of the Medical Monitoring Period.[xxi]
The Emerging Issue
These recent settlements reveal the development of research and evidence of CTE linked to concussion and concussion-related injuries incurred during a football or contact sport career. CTE is tested by performing a brain tissue analysis, which cannot be performed until after the death of the affected person, thus, it is legally difficult to prove this brain condition while the litigant is still living.[xxii] However, it has been found that the brain deterioration symptoms found to be linked to CTE can be evidenced over a period of years or even decades after the repetitive brain trauma.[xxiii]
As a result of the litigation and developing medical findings, insurance companies have pulled their coverage from amateur sports teams to the NFL.[xxiv] There is only one known insurance company providing coverage.[xxv] There have already been repercussions exhibiting the threat to the sport: Pop Warner, a youth football league, has received a wave of lawsuits over the past few years.[xxvi] Debra Pyka filed suit on behalf of her 25-year-old son, who committed suicide and was posthumously diagnosed with CTE.[xxvii] Pyka’s son had played Pop Warner football for four years when he was younger, and she alleged that CTE played a “substantial factor” in his suicide.[xxviii] The case settled for less than $2 million.[xxix] Following the lawsuit, AIG discontinued their insurance coverage of Pop Warner regarding neurological injuries.[xxx] Pop Warner’s executive director stated that the company has two options, “[t]he two most obvious are either we go out of business or we declare bankruptcy;” however, currently Pop Warner has Scottsdale Insurance covering them without the exclusion of neurological injuries, but the policy must be renewed each year.[xxxi] The organization continues to be targeted by a CTE-related class actions.[xxxii] Pop Warner and other youth sports league organizations fear that the access to insurance will vanish completely if the litigation continues.[xxxiii]
Not only have youth football leagues been affected by the evaporating insurance market, but junior colleges in Arizona have been forced to end their football programs.[xxxiv] One of the largest community college districts in the country, the Maricopa County Colleges which has 10 schools altogether, eliminated their four football programs.[xxxv] The school district was spending over $1 million on accident and catastrophic insurance premiums, and around one-third of that cost was going toward the district’s four football teams.[xxxvi] After thorough cost analysis, it was recommended to eliminate the sport.[xxxvii] The threat of litigation and the high cost or unavailability of insurance has and will force football programs, especially those not highly profitable, to shut down.
Conclusion
Youth leagues, colleges, and professional leagues all face the threat of litigation regarding head injuries, especially as medicine has refined its research of CTE. Jon Butler, Pop Warner’s executive director stated, “people say football will never go away, but if we can’t get insurance, it will.”[xxxviii] There is no sign that insurance companies will decide to reinstate their coverage for neurological injuries for football and other contact sports. Unless the manner in which the sport is played changes to avoid head collisions altogether, insurance companies will not reenter the market covering head injuries in the sport. Analysts have stated that this issue could affect other contact sports like soccer and hockey, because these sports involve some level of risk regarding head injuries.[xxxix] If insurance companies do not take on the risk, then the risk could potentially be shifted to the players. If there is a way for players to acknowledge and take on their own risk, waiving liability of the league, then the sport could potentially remain afloat. It will be interesting to see how the lack of an insurance market will affect football organizations and how or if the sport will be played in the future.
[i] For the NFL and all of football, a new threat: an evaporating insurance market, ESPN (last visited Feb. 28, 2018), http://www.espn.com/espn/story/_/id/25776964/insurance-market-football-evaporating-causing-major-threat-nfl-pop-warner-colleges-espn.
[ii] Id.
[iii] Id.; An Insurance Crisis Is Quietly Growing For Football In America, National Public Radio (last visited Feb. 25, 2018), https://www.npr.org/2019/01/21/687255649/an-insurance-crisis-is-quietly-growing-for-football-in-america.
[iv] Id.
[v] What Is CTE? Concussion Legacy Foundation (last visited Feb. 27, 2018), https://concussionfoundation.org/CTE-resources/what-is-CTE.
[vi] Id.
[vii] Id.
[viii] ESPN, supra note 1.
[ix] Id.
[x] Concussions and Coverage: Insurance Claims Alleging Long-Term Brain Injuries, Including CTE, American Bar Association (last visited Feb. 28, 2018), https://www.americanbar.org/groups/entertainment_sports/publications/entertainment-sports-lawyer/2017/fall2017/concussions/.
[xi] Id.; ESPN, supra note 1.
[xii] In re Natl. Football League Players Concussion Injury Litig., 821 F.3d 410, 421 (3d Cir. 2016), as amended (May 2, 2016).
[xiii] Id.
[xiv] Id. at 447.
[xv] Id. at 447-48.
[xvi] Id.
[xvii] In re Natl. Collegiate Athletic Assn. Student-Athlete Concussion Injury Litig., 314 F.R.D. 580, 599 (N.D. Ill. 2016).
[xviii] Id.
[xix] Id. at 585.
[xx] Id. at 603-04.
[xxi] Id. at 586.
[xxii] Concussion Legacy Foundation supra note 5.
[xxiii] Id.; In re Natl. Collegiate Athletic Assn. 314 F.R.D. at 591.
[xxiv] Josh Kosman, AIG ends insurance policy against head injuries with NFL, New York Post, https://nypost.com/2016/06/12/aig-ends-insurancy-policy-against-head-injuries-with-nfl/; ESPN, supra note 1; Michal Addady, AIG Won’t Pay For NFL Players’ Head Injuries Anymore, Fortune, http://fortune.com/2016/06/13/aig-nfl/.
[xxv] ESPN, supra note 1.
[xxvi] Id.; Archie v. Pop Warner Little Scholars, Inc., CV16-6603 PSG PLAX, 2017 WL 3084160, (C.D. Cal. May 12, 2017).
[xxvii] Ken Bolson, Pop Warner Settles Lawsuit Over Player Who Had C.T.E., New York Times, https://www.nytimes.com/2016/03/10/sports/football/pop-warner-settles-lawsuit-over-player-who-had-cte.html; Michael Martinez, Pop Warner settles concussion suit filed by former player who committed suicide, CNN, https://www.cnn.com/2016/03/09/us/pop-warner-concussion-lawsuit-settlement-player-suicide/index.html.
[xxviii] Id.
[xxix] Id.
[xxx] ESPN, supra note 1; For the NFL and all of football, a new threat: an evaporating insurance market, ABC News, https://abcnews.go.com/Sports/nfl-football-threat-evaporating-insurance-market/story?id=60446104.
[xxxi] New York Post, supra note 23; ESPN, supra note 1; National Public Radio, supra note 3.
[xxxii] Archie, 2017 WL 3084160 (C.D. Cal. May 12, 2017).
[xxxiii] ABC News, supra note 26; ESPN, supra note 1.
[xxxiv] Id.; ESPN, supra note 1; Anne Ryman, ‘The end of an era and a sad day’ Arizona Western College is latest community college to drop JUCO football, Arizona Central, https://www.azcentral.com/story/sports/2018/12/05/arizona-western-college-eliminate-juco-football-after-2018-season/2219247002/; National Public Radio, supra note 3.
[xxxv] Id.
[xxxvi] Id.
[xxxvii] Id.
[xxxviii] Lyle Adriano, Will insurance destroy America’s favorite sport?, Insurance Business America, https://www.insurancebusinessmag.com/us/news/breaking-news/will-insurance-destroy-americas-favorite-sport-122643.aspx; ABC News, supra note 29; ESPN, supra note 1.
[xxxix] ABC News, supra note 26; ESPN, supra note 1.
American Journal of Trial Advocacy 