The concussion class action against the NFL was settled nearly seven years ago. The NFL’s effort to get insurance coverage for the concussion cases continues to this day, however.
Despite settlements with multiple insurance companies, a fight continues with 10 of them. And, as explained by Daniel Kaplan of TheAthletic.com, the NFL recently was ordered to produce key documents that could fuel the perception and/or reality that the league knew far more about the risks of head trauma than previously known.
Court-appointed referee Michael Dollinger ordered the league to produce, among other things, indemnity agreements with helmet manufacturers. Those documents could contain language that reveals the league’s knowledge about the potential risks of head trauma, given that the purpose of an indemnity agreement is to make another party (in this case, the helmet manufacturer) responsible for any eventual liability.
Dollinger also questioned why so few of the documents produced by the NFL come from before 2000. The league created the Mild Traumatic Brain Injury Committee in 1994, and its work has been widely criticized as downplaying the risks of head injuries.
“The relative paucity of documents predating 2000, including documents pertaining to the MTBI Committee — despite the fact that attention was apparently already being paid at that period to safety issues — at least raises some question as to the potential existence at some earlier period of documentation that is no longer available, at least from defendants,” Dollinger wrote in his ruling on the issue, via Kaplan. “The League proffers, as a possible explanation, the rarity of reliance in that era on computer technology, and that may well be a partial or complete explanation. Nonetheless, that is a matter involving some unavoidable degree of speculation, which leaves open other possible theories, including a failure to retain pertinent documents.”
The NFL’s settlement with former players carried the benefit of concealing from public view documents and potential testimony that could have or would have shown the full extent of the league’s knowledge as to the issue of head trauma. The remaining insurance companies with which the NFL is fighting are pushing for that specific information, both to avoid responsibility for providing insurance coverage and, as a practical matter, squeezing the league to settle the claims in order to avoid a potential P.R. problem if/when those documents become available to the media.
Dollinger’s ruling is subject to appeal. It’s safe to assume that the league will indeed appeal it.