Around the same time yesterday Brett Favre was telling a House panel he had Parkinson’s, a lawyer for an insurer the NFL is suing told a New York court hearing the league knew about the dangers of head injuries long before it reached a settlement a decade ago with thousands of former players suing over their neurodegenerative diseases.
The NFL has long maintained it was unaware prior to the first former player lawsuits filed in 2011 of the link between head injuries and conditions like Alzheimer’s, ALS and Parkinson’s, diseases that are covered under the settlement, which has paid out nearly $1.4 billion and has 55 years remaining. The former players never got to test the NFL’s contention because the parties settled prior to discovery.
But the insurer, TIG Insurance Company, is seeking to avoid liability for the settlement, and has deposed dozens of league and team officials, and reviewed thousands of documents and correspondences. This is believed to represent the only discovery conducted on the NFL over concussion claims.
“The NFL had become aware of the type of bodily injury at issue in the underlying lawsuits prior to November 2000, clearly the NFL had been aware since the inception of the league, that head hits to players were happening, that concussions and alleged head injuries were happening,” said Heather Simpson, outside counsel for TIG. “And they also were aware that neurodegenerative injury was allegedly sustained by former players.” TIG’s coverage began in November 2000, so if it can prove the NFL knew then that the later in life maladies suffered by the players was connected to playing football, that could invalidate the insurance contracts.
Outside counsel for the NFL, Clea Liquard, forcefully rejected Simpson’s argument, saying there is “certainly not any credible evidence of the NFL’s own knowledge, particularly when you consider the fact that we’ve been through years of discovery, dozens of depositions, including of the NFL’s highest level executives, none of which TIG relies on. And none of these sorts of fragments from the record come close to showing or suggesting even that the NFL had actual knowledge of any of the neurocognitive conditions of the roughly 1,800 players that have now received MDL settlement awards.”
The hearing marked something of a seminal moment in the protracted case, first filed in 2012 as a preemptive suit by the NFL to get its insurers to pony up for prospective losses in the players’ lawsuits, and then ultimately the settlement, which is uncapped. Originally there were over 30 insurers in the case, but the NFL settled with all but TIG, which appears to have much of the coverage burden. The hearing was for oral arguments for summary judgment motions the NFL filed to toss much of the case, a critical moment in a lawsuit and at long last reached in this one. The judge suggested the case could go to jury trial at the earliest in November 2025.
TIG’s main argument is that the NFL settled for public relations reasons and not sound legal ones. The defenses the NFL had to the former players lawsuits, TIG argued, include their cases belonging in arbitration; the players couldn’t prove the NFL caused their injuries when they had competed in college and high school; and there is allegedly no science that definitively proves head injuries cause the neurological maladies covered by the settlement.
TIG lawyers spelled out an interesting timeline at the hearing, noting in the year before agreeing to the settlement of the class action lawsuit, the league was committed to fighting it.
“In a hearing in this case in March 2013…counsel told (the court) at that time that the NFL was defending the cases aggressively, that the NFL was trying very, very hard to make its liability zero, and in characterizing the underlying case, counsel stated, `The plaintiffs say you owe us a billion. We say we owe you zero. We’re really working hard to make it zero or something a lot closer to zero,’ Simpson said. “But within four months of those statements, the NFL made an initial offer of $300 million and within six months, they entered into a term sheet with a total value of approximately $900 million that soon became an uncapped settlement.”
The NFL in the insurer case finds itself stuck between a rock and hard place. With the players, the league has long said it did not know of the connection between head hits and neurological diseases. But in defending the settlement, its experts have taken the position that they assume it is true. It’s a fine line, saying it agreed to the settlement on the assumption the connection was true, but in another breath arguing there is not enough scientific evidence to prove it (this is also true of cigarette smoking and cancer).
The NFL’s lawyer, Liquard slammed the insurers for putting the NFL in the position of exposing the league to potential liability.
“’I’m sort of stunned to hear the proposition that forcing the NFL to prove that it caused… NFL players later in life these diseases that are claimed is not tantamount to proving liability,” she said. “We just heard (TIG lawyer) Mr. (Chris) Carroll using arguments the NFL made in the underlying case against us here in this coverage suit.”
Carroll called football a violent sport where the injuries are predictable, not accidental as is required for insurance coverage.
“The violence of the game is a core foundation of the game… it’s still a violent game,” he said. “Why? Because there’s $13 billion in revenue a year for the NFL to keep it this way. This is a violent sport. The plaintiffs in the underlying litigation, in the preemption motion argument said the NFL markets violence. Our only point, Your Honor, here is, and I’m not going to go into much more than this. There’s no other context where we could find where a court was presented with these sets of facts, where an insured pays people to commit violence.”
Judge Andrea Masley did not commit to a time frame for deciding the summary judgment motions, not a surprise in a case that has dragged on since President Barack Obama was in his first term. Even the November 2025 time frame for a trial was more her saying that is the earliest she was available for trial than a time hashed out between the parties.
