The NFL soon may have to finally disclose evidence that would reveal the full extent to which the league was aware of the dangers of concussions before taking meaningful steps to protect players from them.
On Monday, a New York judge lifted a longstanding stay of the discovery process in litigation filed between the NFL and its insurers over the availability of coverage in the concussion lawsuits.
As explained by Ken Belson of the New York Times, this hardly means that the media and fans will soon be able to see what the NFL knew and when the NFL knew it, because the league is expected to appeal the ruling. And even if the discovery process proceeds, any materials disclosed by the league to its insurers undoubtedly will be kept confidential unless and until the coverage dispute becomes the subject of a trial in open court.
If/when that ever happens — and more than 90 percent of all civil cases settle before a trial — it will happen years from now.
In the interim, the NFL will have plenty of reasons to settle the coverage claims before witnesses are questioned under oath and hundreds of thousands of documents are dumped onto the lawyers representing the insurers. Especially because, as the league realizes, any information disclosed in the insurance dispute can and will be used against the league in the lingering concussion lawsuits that aren’t within the still-pending mass settlement.
Consider this excerpt from the Law360 article regarding the dispute: “According to the NFL, one of the insurers’ defenses for denying coverage is that the league expected or intended the injuries suffered by the players suing in the underlying action. Thus giving the insurers a green light to prove those facts through discovery, including taking depositions of material witnesses related to the concussion issue, would inadvertently help those players and their families in their own case, the NFL contended.”
Stripping away the lawyer speak, the point here is that the NFL doesn’t want the insurance companies to gain access to evidence that may show the NFL knew enough about concussions to show that the league knew or should have known that players were being adversely impacted by them. The effort to shield such evidence from view strongly implies that such evidence exists.
If the NFL has its way, no one will ever see it, if it does indeed exist. The question becomes how long the league wants to engage in this game of chicken with an insurance company that has no interest in paying on the NFL’s claim.