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Insurance is the new existential threat to football, supposedly

NBC Sports logo NBC Sports 1/17/2019 Mike Florio
a close up of a sign © Getty Images

There’s a new NFL boogedyman.

As explained by ESPN’s would-be Woodward and Bernstein, difficulty in obtaining insurance could (gravely ominous organ music please) destroy . . . the . . . sport.

“From the NFL to rec leagues, football is facing a stark, new threat,” the article begins, “an evaporating insurance market that is fundamentally altering the economics of the sport, squeezing and even killing off programs faced with higher costs and a scarcity of available coverage, an Outside the Lines investigation has found.”

Buried in the story is the fact that hockey and soccer face the same issue. But there’s no glory or fame in throwing a spear at the underbelly of those sports. Indeed, Woodward and Bernstein didn’t become Woodward and Bernstein by targeting offices lower than the highest in the land.

“Organized sports, like most endeavors involving risk, can’t exist without insurance,” they write. But that’s grossly incorrect. If the NFL couldn’t buy insurance, would the NFL cease to exist — or would the NFL create its own pool of money that would pay defense costs, settlements, and judgments?

For pro football, the existence of the labor law exemption coupled with the basic reality that anyone who straps on a football helmet now knows or should know the risk of playing tackle football makes insurance against head-trauma lawsuits largely irrelevant because no modern player will have a leg to stand on in a concussion lawsuit, absent the kind of deliberate and intentional misconduct that would fall beyond the scope of most insurance policies, anyway.

For college football, the risks are similarly known. And if college football couldn’t obtain insurance for its programs, the sport could easily afford to have each program pay into a fund that would finance litigation, the same way insurance companies do.

For high schools, the concept of sovereign immunity could provide a potentially simple solution as to public institutions that can’t purchase insurance (if it ever gets to that point), since most states waive sovereign immunity only to the extent that insurance is available. (Ultimately, the question would hinge on the laws of each state.) In contrast, private high schools would have to either find insurance or self-insure.

If youth football programs like Pop Warner eventually can’t operate due to the unavailability of insurance (the ESPN article points out that Pop Warner had to switch insurance, which means that Pop Warner still has insurance), so be it. Many think kids under 14 shouldn’t play tackle football, anyway. But does anyone think that the lure of becoming a multi-millionaire in their early 20s will scare elite athletes away from high school or college football if they didn’t play at the Pop Warner level?

The article also parades the horribles regarding a long-term liability risk that can emerge decades from now, as football players develop cognitive problems and then seek compensation years after the fact. Unless and until the medicine evolves to connect playing youth or high-school football with the emergence of cognitive issues far later in life, those cases will have a hard time prevailing, which means that insurance companies most likely won’t have to worry about a bunch of middle-aged-and-older men filing class actions about concussions suffered in their teens. (The fact that few if any such cases have been filed to date would tend to suggest that they won’t be filed in the future, absent a medical smoking gun that allows someone with a cognitive disease to prove conclusively that it came not from the aging process or some other specific trauma but from a concussion suffered playing football years earlier.)

None of this means that obtaining insurance coverage hasn’t become more challenging given the discovery of CTE and the litigious nature of modern American society. But it’s impossible to see it being the kind of existential threat to the game that the conveniently-timed #longread portrays.

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