A New York state judge is forcing the NFL to reveal something it has desperately tried to keep secret: how the league's medical officials handled the issue of brain injuries during the last two decades.
On Monday, New York state Supreme Court Justice Jeffrey K. Oing issued an order that will let insurance companies that wrote policies for the NFL determine if the league knew about the dangers of concussions and deliberately concealed them from players. The issue is central to whether the insurers will pay for a class-action settlement brought by more than 5,000 retired players who accused the league of fraud and negligence because they were not told about the risks of repeated head hits.
The NFL is likely to appeal Oing's ruling.
The settlement, which covers all retirees except for a few dozen players who have opted out, was completed but is under appeal. The league has agreed to pay an unlimited amount of damages to players who have been found to have severe neurological conditions like Parkinson's disease and Alzheimer's disease, and pay for medical monitoring. Individual players can receive up to $5 million, based on their condition, when it was diagnosed and their time in the league.
The estimated costs of the settlement could reach $1 billion.
The settlement was reached in August 2013, before plaintiffs' lawyers could depose witnesses and look through the NFL's records to determine if fraud or negligence had been committed.
The NFL asked the 30 or so insurers who wrote policies for the league dating to the late 1960s to pay for the settlement, as well as cover its legal costs.
The insurers, though, refuse to pay because they have been unable to determine if the league committed fraud, something that they feel would absolve them of any responsibility to pay out.
The insurers declined to comment on the judge's ruling Monday. The NFL did not immediately respond to a request for comment.
Oing delayed ruling on the case while the settlement was being completed. In a last-ditch effort, players objecting to the settlement have appealed to the Supreme Court. Legal experts consider the appeal a long shot, which is why Oing resumed hearing arguments in the insurance case.
After unsuccessfully pressing the two sides to come to an agreement, Oing has now decided to allow the insurers to proceed with discovery, which could potentially unearth damaging records. Most of those records would be treated as confidential, though some of them could end up appearing in the public court record if the case proceeded to trial.
Even if the NFL appeals Oing's ruling, the insurers might be allowed to proceed with discovery while the league's appeal is heard. This could prompt the NFL to settle with the insurers by agreeing to pay for some or all of the settlement. That would ensure the NFL does not have to disclose what it knew about concussions years ago.