It takes a lot to make the insurance industry seem sympathetic. The NFL potentially is in the process of doing that.
The league wants more than $1 billion from its insurance carriers in connection with the settlement of the class action arising from the claim that the NFL concealed for years the long-term risks of head trauma from its players. But the league apparently doesn’t want the insurance carriers to find out what the league knew and when the league knew it regarding the long-term risks of head trauma.
According to Daniel Kaplan of SportsBusiness Journal, the insurance companies have commenced the process of enforcing “long-standing subpoenas” for documents regarding head injuries from the NFL’s 32 teams. The NFL has attempted to block the effort with a motion for a temporary restraining order.
A court in Indiana already has ordered the Colts to comply (the Colts are appealing). The league’s motion to block the subpoenas included a copy of one served to the Bills, which via Kaplan seeks six categories of documents including correspondence related to NFL player safety committees, communications about the class-action settlement, and documents relating to the film Concussion, the League of Denial book, and ProCap, a padded helmet product.
The move comes amid a two-year fight over the limits of permissible “discovery” in the lawsuit. The league avoided surrendering sensitive information regarding its knowledge as to head trauma by settling the class action. Absent a settlement with the insurance companies, the league could eventually be required to submit to an effort to test whether the payments made to former players fall within the scope of the insurance coverage the NFL purchased.
Obviously, insurance companies prefer not to pay whenever and wherever they can legitimately refuse to do so. Their only asset is money, and the business is all about bringing in as much money as possible in premiums while paying out as little as possible in claims.
But the NFL in this case apparently wants the benefit of its insurance coverage without giving the insurance companies access to information that could be critical to determining whether or not coverage exists. Most insurance policies include a long list of coverage exclusions and other exceptions that prevent payment from being made; it’s only fair for the insurance companies to be able to determine whether, for example, the league’s knowledge of the potential risks arising from head trauma coupled with any meaningful effort to warn players and/or to enhance safety make coverage unavailable.
Of course, both sides understand these sensitivities. The circumstances suggest that the league has something to hide, and that the insurance companies hope to force the NFL to choose between opening the vault of information or accepting whatever offer the insurance companies are willing to make in order to make the case go away.
As a practical matter, the league won’t be inclined to blink until it has to. This latest battle is aimed at forcing the league to blink; the league will try in response to continue to delay for as long as possible the moment at which it must choose between accepting the best offer from the insurance companies or facing the reality that certain potentially unfortunate secrets regarding head trauma will end up being revealed to the insurance companies and possibly in turn to the world.