NFL is ordered to produce key documents in lingering concussion litigation

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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.

3 responses to “NFL is ordered to produce key documents in lingering concussion litigation

  1. How can anyone playing a contact sport like football, hockey, rugby etc not be aware their is a potential for head trauma? Surely there must be assumed risk on the players behalf.

  2. This is beginning to play out like the situation with Big Tobacco and cancer. The NFL tried and is still trying to hide their efforts to suppress the scientific evidence, attacking the accusers, fostering the narrative that it’s concussion is just a headache that real men could just shake off. The sad reality is that many people are willing to believe anything that allows them to enjoy football in seemingly good conscience and that all the rule changes are proof of the decline of today’s decline of manhood.

    Just as with the case of cigarettes, science and reality will slowly win out. It took 50 years for smoking to decline from ~50% to less than 20% today. And dropping.
    If you look at football as a pyramid with the NFL at the top, high school football is the vast base holding it up providing the next generation of players and fans, than football may be in for future problems as participation in high school football is showing a slow steady decline, with the concussion issue being a central issue. Is the fleeting glory of high school football worth the risk of cognitive damage? The answer is increasingly, No.

    Unless the league can find ways to reduce these risks, and convince parents that their kids won’t suffer mental impairment to their still vulnerable developing brains, football will decline. Just as with the case with smoking, this won’t happen evenly across the country with some states having stubbornly higher rates is smokers. But eventually even tobacco growing states have major decline in smoking. It took most of my life (60+) for this to happen.

    To save football, the NFL needs to stop the obfuscation, come clean, release all the relevant documents and finance research in reducing the risks involved. At this point, the league’s credibility on the concussion issue is pretty close to zero. It reads too like its being treated as a PR issue. Openness is the key to regaining some of their lost credibility. Take your lumps for past misdeeds and move forward.

    Just as with the case with tobacco,

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