SDV Insights

On November 21, 2022, in the first case ever to reach a jury against the National Collegiate Athletic Association (“NCAA”), a Los Angeles County jury found the NCAA was not responsible for the death of former University of Southern California linebacker Matthew Gee. Gee played for the Trojans when the team won the Rose Bowl in 1990 and sustained approximately 6,000 blows to the head throughout his collegiate career. Gee died at the age of 49 of cardiac arrest, allegedly from permanent brain damage that led to substance abuse and hypertension. His wife filed a wrongful death action against the NCAA, alleging that repeated head trauma led to his death. Gee’s brain was studied post-mortem by Boston University’s Chronic Traumatic Encephalopathy Center and was found to have chronic traumatic encephalopathy (“CTE”), a condition that can only be diagnosed after death. CTE was also found in the brain of Mike Webster, a Hall of Fame football player and the subject of the movie Concussion, starring Golden Globe nominee Will Smith. CTE often manifests through symptoms such as memory loss, dementia, and depression. 

While Gee’s suit against the NCAA is unique in procedure, injury-related suits linked to football have been pending for over a decade. Hundreds of concussion and head-injury-related cases have been filed and remain pending by current and former players and their representatives, most notably against the National Football League (“NFL”). These cases will continue to make headlines as they come and go, but the NFL and other professional athletic organizations will be navigating a different headache on the heels of resolving these suits – obtaining indemnity from their insurers for the costly settlements and verdicts.

Concussion lawsuits against the NFL emerged in 2011 in state court in California, then federal court in Philadelphia, followed by hundreds more across the country. The federal court system consolidated the lawsuits and assigned the cases to U.S. District Judge Anita Brody in Philadelphia (“Concussion Suits”). Once the lawsuits started pouring in, the NFL prophylactically sued 32 of its insurance carriers in 2012 seeking a declaration that the NFL was entitled to a defense in those underlying suits. Nearly 30 insurers filed suit against the NFL in New York, seeking confirmation that they did not owe the NFL a duty to defend because the NFL knew about – and concealed – the danger of repeated head trauma. The NFL’s suit against its insurers was stayed while the slew of underlying cases was consolidated and ultimately settled before even reaching discovery.

Once the NFL and players agreed to a settlement of the Concussion Suits in 2014 – which was finalized and approved in 2015 – the stay on the NFL’s coverage suit was lifted. According to court filings, the NFL has paid more than $1 billion into the settlement of the Concussion Suits, but its insurers have refused to pay. The insurers assert numerous coverage defenses, including: the fact that the alleged bodily injury was not caused by an occurrence; application of the “expected or intended” exclusion if the NFL knew about the dangers of head injuries; violation of the voluntary payment provision pertaining to the settlement of the Concussion Suits; and that players did not suffer an “injury-in-fact” during the applicable policy periods.

The NFL has settled the coverage dispute with more than 25 insurers, leaving only four defendant-insurers¹ to embark on a phase of litigation not yet reached in the nearly fifteen years of the Concussion Suits discovery. Namely, the parties took depositions of NFL personnel, which the NFL had previously avoided and promptly sought to seal from the public. It remains to be seen whether the NFL can push the few remaining insurers to settle to minimize an even more public display of testimony at trial. In the fall of 2023, the NFL and the insurers filed cross-motions for summary judgment that remain pending. Oral argument on those motions is scheduled for September 24, 2024. If the Court denies those motions, the case may proceed to a jury trial. 

The outcome of the NFL’s coverage litigation will surely bleed into other branches of professional athletics, as other professional leagues like the National Hockey League face similar head-injury litigations and related insurance coverage issues associated with judgments and/or settlements of similar litigation. Whether these professional organizations can secure indemnity from their carriers for traditionally large settlements will significantly impact the sports and insurance landscapes going forward.

SDV will continue to monitor the ongoing entanglements amongst professional athletes, teams, and leagues and their insurance carriers. Whether an athlete sues its team for injuries, a team undertakes construction of a new stadium – as many currently are – or a league experiences business interruption losses from a natural disaster, insurance coverage issues lurk in every crevasse of athletics and valuable lessons can be gleaned from them all.

If you have questions, reach out to attorney Rachel S. Pearson at RPearson@sdvlaw.com or 203.287.2109.