The Expanding Liability of Sports Concussions
Since we examined the issue of head trauma two years ago, concussion awareness has gained tremendous traction. Nowhere is this more apparent than on the angst-ridden faces of parents watching from the sidelines after their young player sustains a hit to the head. Should the player be sidelined or continue to play? The vast majority of sports organizations have protocols in place to address potential concussions. Parents of youth and high school athletes also sign waivers acknowledging that brain damage is now a risk of the game. Still, in a sports-loving culture, it’s a tough call.
Think about the star player with the big game days away or the high school athlete performing for college scouts. Once diagnosed with multiple concussions, a young player may be forced to retire from the sport that has been central to their life. No wonder some 50 percent of concussed athletes are not reporting injuries.
Immediate on-field diagnosis of concussions remains challenging. Even the NFL is still learning. This past season, Houston Texans quarterback Tom Savage was let back into a game after a major hit from the San Francisco 49ers defense, despite TV cameras recording his hands twitching alarmingly after he went down. He was later further evaluated and removed from the game. This delayed diagnosis was hardly an isolated incident and the NFL continues to refine its protocols.
Brain science, on the other hand, is increasingly black and white. It clearly evidences the long-term damage of concussions, including Alzheimer’s, dementia and CTE. If a concussed athlete is returned to play too soon, the ramifications of a second hit can be immediate: permanent brain damage and even death.
It’s not just lives at stake. Sports organizations face potentially massive legacy exposures and ongoing concussion liability every day they continue to play. Following the 2016 NFL settlement, organizations throughout the sports world have been bracing for impact. Class action litigation against the NCAA continues and is expanding, with an estimated class of 4.4 million student-athletes amassed over decades. Litigation is trickling down to the local level, targeting schools and municipalities. One school district was recently ordered to pay $7 million to the family of a former high school football player who suffered a debilitating head injury in a game. The suit alleged that the football staff failed to recognize and respond to concussion symptoms.“We didn’t know the danger” will be increasingly difficult to support as a defense in failure to warn brain trauma-derived tort litigation.
As concussion awareness and litigation have expanded, the focus on safety has increased as well. The risk management obligations of major sports organizations — including their trainers, doctors and coaches — continue to elevate and are trickling down to every level of sports, right down to primary school playgrounds. It remains to be seen how litigation will ultimately reshape sports at every level, but we can anticipate that the ramifications will be significant.
It’s not just lives at stake. Sports organizations face potentially massive legacy exposures and ongoing concussion liability every day they continue to play.
For those in the business of insuring liabilities, brain trauma is an emerging latent exposure the likes of which the insurance industry has not seen in decades. Comparisons to the asbestos crisis are unavoidable. In the case of asbestos, years of exposure to the hazard manifested itself only decades later. The medical and scientific community had to play catch-up to establish effective protective protocols and the insurance industry was slow to react in providing solutions for the exposures.
In the case of head trauma, industry response has thus far been varied. Some carriers are deploying comprehensive CTE or concussion-related exclusions on a case-by-case basis, depending on class, sport and individual risk management protocols. Some carriers are wholly excluding concussion-related risks or providing warranties and sub-limits of coverage, attempting to ‘wall off’ legacy exposure. Still others are not unlike the parent on the sideline, wondering whether they should keep playing the game at all. Moving forward, I anticipate more insurers will migrate from occurrence to claims made coverage to mitigate tail exposure.
As an industry, we need to continue to invest in understanding the exposure, innovating to manage it and collaborating with municipalities, universities and professional sports leagues to manage and mitigate the risk. As medical and technological advances enhance the ability to detect and prevent concussions, our ability to prudently underwrite it will be enhanced. Data and science will fuel a much faster insurance industry response than we saw with asbestos liability, though these same advances will likely sharpen the ability to understand timing, origin and extent of injuries for litigation purposes as well.
One thing is certain: tackling this risk requires a major league commitment from our industry. As we saw in the NFL this season, managing concussion risk is a work in progress.