Head On

Anytime there is a major lawsuit against a professional sports organization, it’s big news. Combine that, however, with legendary football names, such as Junior Seau, Tony Dorsett, Eric Dickerson and hundreds of other players, in a class action lawsuit against arguably the world’s highest-profile league — the NFL — and the impact sends powerful shock waves around the sporting world.

As of late January 2013, more than 4,000 retired professional football players had sued the NFL over head injuries suffered during their time on the field, according to a database kept by The Washington Times. In all, 204 lawsuits have been filed.

Most of the concussion lawsuits have been consolidated before U.S. District Judge Anita B. Brody in Philadelphia. They generally allege the players suffered serious brain injuries while playing in the NFL, and that the league and its teams never informed them about the long-term effects of football’s repeated head trauma, including diseases such as chronic traumatic encephalopathy (CTE).

Insurance companies have been dragged into the legal fray, with the NFL initiating a lawsuit against 32 insurers in California state court in August 2012. The league argues that its insurers should pay for legal defences in injury-related lawsuits, and it wants the court to order insurers to pay injury-related judgments and settlements.

The insurance companies have advanced various responding arguments over their portion of responsibility, if any, including that they wrote policies for a limited occurrence period or that they provided coverage only for the NFL’s marketing arm, not the league itself. A lawsuit against the NFL by Travelers Cos., also filed last August, seeks to move the jurisdiction to New York State Supreme Court.

Experts say that the player-based litigation against the NFL could take as long as 18 months, and could wind up costing the league as much as $10 billion.

“Insurance carriers are watching this,” Chicago-based sports lawyer Timothy Epstein noted in a January 31, 2013 Toronto Star article. “If the NFL is found on the hook for these damages — the premiums are already going up. It’s going to keep going up to the point of, ‘Is it affordable to do this anymore?’”

The raft of litigation does not apply strictly to professional sports in the United States. A similar lawsuit was filed against the National Collegiate Athletic Association (NCAA) for “negligence and inaction with respect to concussions and concussion-related maladies.”

Law firm Hagens Berman initiated the action in U.S. District Court in Illinois in September 2011, involving former Eastern Illinois football player Adrian Arrington. University of Central Arkansas football player Derek Owens and Ouachita Baptist University (Arkansas) soccer player Angela Palacios also have been named as plaintiffs, as well as former University of Maine hockey player Kyle Solomon.

This heightened legal activity in the U.S. has raised concerns about the trickle-down effects of head injuries on various professional and amateur sports organizations. “Insurers will be tightening up their own coverage and make sports more expensive,” Robert Boland, who teaches sports law at New York University, said in a December 10, 2012 New York Times article. “It could make the sustainability of certain sports a real issue.”

LESS OF A HIT

Yet in Canada, the influence of concussion-based litigation on insurance and premiums has been relatively weak. Sources in sport insurance say they have witnessed little movement in terms of limits to availability, restrictions on coverage or rate increases.

“We have not seen much of a reaction among underwriters in Canada,” reports Murray Morrison, president of British Columbia-based All Sport Insurance Marketing Ltd. “They have been asking very few questions and not poking around too much. The reality is that insurance coverage is so reasonable today; the pricing is cheap and there is certainly no problem with availability,” Morrison notes.

Other sources in the sports insurance industry note a similarly minimal impact on coverage and pricing. “There hasn’t been a dramatic change in terms of rates for insurance coverage for the types of sports organizations we deal with,” says Alan Hollingsworth, vice president and partner with Hub International, who is also the brokerage’s sports and entertainment practice leader.

“Large organizations with sound risk management programs are still seeing favourable rates. For smaller organizations that may not have the budget or resources for a comprehensive risk management system, we are seeing less flexibility on rates and deductibles,” he adds.

For Greg Sutton, president and CEO of Sutton Special Risks, sports injuries have followed an evolution from major knee problems to eye concerns now to concussions. This has prompted greater awareness, but not a drastic change in underwriting guidelines.

“Sports leagues are much more aware of head injuries as the medical knowledge and treatment of concussions have advanced significantly in recent years,” says Sutton, whose firm provides disability insurance to players in major professional leagues in football, hockey, basketball and baseball. “There have been rule changes and investments in equipment, but this has not really changed how we approach underwriting rules for a given player,” he says.

Sports leagues with a high proportion of Canadian players — such as the Canadian Football League (CFL) and National Hockey League — have not been the subject of any litigation to date on head trauma. While current and former players in these leagues have suffered many of the same types of concussion-based injuries as those in the NFL, along with evidence of CTE, none have filed a lawsuit against their respective leagues.

“I think there is a sense that other leagues, and insurers, are carefully watching what happens to the NFL lawsuit,” Sutton offers.

EVOLVING TARGET

This does not mean there is an absence of liability exposures for head (or other) sports injuries in Canada. Law firm McCague Borlack cites several leading cases on sports litigation in a recent paper, Concussions and Injuries in Canadian and American Contact Sports: A Legal Perspective, co-authored by Jim Tomlinson, Adrian Nicolini and Stefanie Vescio.

One of the leading cases in sports injury related to tort principles involves Robitaille v. Vancouver Hockey Club Ltd. In this case, Robitaille experienced neck, shoulder and arm pain when he was body checked in a game against the New York Rangers on January 2, 1977. Although Robitaille reported the pain to his trainer and coach, he played in three following games, including January 19, 1977 when he suffered a spinal cord injury from another body check.

After considering the evidence at trial, the judge ruled that “the defendant (Vancouver Hockey Club) breached its duty of care in failing to react reasonably to Robitaille’s complaints and symptoms, in failing to provide appropriate medical care and in putting pressure on him to ignore his injuries, which resulted in the permanent damage,” McCague Borlack notes in the paper.

While not a concussion injury per se, the paper’s authors add that “this case is the leading decision dealing with the duty of care of a professional team and an example of the challenges that team physicians face in balancing their duties as a doctor with the pressures exerted by team management.”

Some sources suggest the liability of sports teams, medical personnel and coaching staff may be an evolving target in the legal arena.“I think in today’s litigation environment, an adult who is cleared to re-enter a game after suffering a concussion, there very well could be a determina tion of legal liability,” Morrison says.

“The problem is that when the lawsuits start coming down the pipe, they could arrive like a train. What happens if a surgeon cannot operate because of shaky hands due to a brain injury from playing a contact sport for 15 to 20 years?”

This liability is potentially more pronounced at the amateur level, particularly for children and adolescents involved in sports. McCague Borlack observes that in football injury cases such as Dunn v. University of Ottawa and Thomas v. Hamilton (City) Board of Education, courts have held that the “appropriate standard of care to be required of coaches and trainers is that of a careful and prudent parent.”

HEIGHTENED AWARENESS, PREVENTIVE ACTION

The increasingly high visibility of head injuries has spurred education and injury prevention programs at several major sports organizations, such as Hockey Canada and the CFL/Football Canada. Hockey Canada, for example, has created apps, pamphlets and videos on concussion awareness, while also changing rules in minor hockey at the start of this season to prohibit any direct contact to the head.

Many leagues and associations have put in place new concussion protocols for assessing concussions based on the latest medical evidence.

The CFL and Football Canada also have prepared concussion flyers and posters with distribution aimed at 100,000 players, parents and coaches in amateur football, 3,200 high schools with 750,000 student athletes and 52 university programs representing 2,000 football players and 10,000 other athletes.

These preventive steps in risk management are part of what every sports-related organization should be doing, argues McCague Borlack’s paper. It lists several risk measures that associations and leagues can adopt, including increasing education and awareness, adopting adequate methods of detecting and diagnosing concussions, implementing strict return to play guidelines and post-concussion management, and changing attitudes and behaviour toward head injuries.

“I think larger sports organizations are paying attention to risk management for several reasons,” says Hub International’s Alan Hollingsworth. “One, they want to have and promote a safe environment; two, they want to prevent injuries and they want to be seen as taking this seriously; and three, they take their brand and their reputation seriously,” adds Hollingsworth.

Concussions are receiving a great deal of attention in “high-risk” contact sports such as football, hockey and rugby. However, other sports, not traditionally considered to be “full contact,” may also bear the burden of liability for head injuries, including soccer, basketball and baseball.

“The law in Canada relating to liability for concussion-related injuries is still in its nascent stages of development,” notes McCague Borlack’s paper. “There has been a palpable increase in the public’s awareness with respect to concussions. That increase in awareness has led to a demand for greater oversight and regulation.”

This growing concern has prompted the introduction of safety protocols, education initiatives and injury prevention programs at many sport organizations. Time will tell if these efforts are enough to stave off lawsuits by former players. The courts will ultimately be responsible for determining issues of liability, as seen by the ongoing NFL and NCAA class-action lawsuits.

Many in the sports profession and insurance industry will be closely monitoring the outcome of these legal actions — and any copycat lawsuits they may engender.