From ESPN - Long Read
Sorry, I hate to give them clicks; but, the gist of this article is that Football Leagues and helmet/equipment manufacturers are finding insurance markets drying up and how this may impact the future.
The NFL no longer has general liability insurance covering head trauma, according to multiple sources; just one carrier is willing to provide workers' compensation coverage for NFL teams. Before concussion litigation roiled the NFL beginning in 2011, at least a dozen carriers occupied the insurance market for pro football, according to industry experts.
The insurance choices for football helmet manufacturers are equally slim; one helmet company executive said he was aware of only one. Pop Warner Little Scholars, which oversees 225,000 youth players, was forced to switch insurers after its longtime carrier, a subsidiary of the insurance giant AIG, refused to provide coverage without an exclusion for any neurological injury.
"People say football will never go away, but if we can't get insurance, it will," Jon Butler, Pop Warner's executive director, lamented to colleagues after discovering that just one carrier was willing to cover the organization for head trauma, according to a person who was present.
Dr. Julian Bailes, Pop Warner's medical director and a member of the NFL's Head, Neck and Spine Committee, told Outside the Lines "insurance coverage is arguably the biggest threat to the sport."
With youth participation rates continuing to fall, the insurance crisis adds another layer of uncertainty to the future of America's No. 1 sport. Insurance companies, which earn billions of dollars each year by taking on risk, are increasingly reluctant to bet on football and other sports associated with traumatic brain injuries. Some insurance industry executives compare the issue to asbestos, an occupational hazard that has cost insurers at least $100 billion. Traumatic brain injury "is an emerging latent exposure the likes of which the insurance industry has not seen in decades," Joe Cellura, president of North American casualty at Allied World, wrote in a blog post last year for the website Risk & Insurance. Cellura declined to comment for this story.
"Basically, the world has left the marketplace," Alex Fairly, CEO of the Fairly Group, an Amarillo, Texas-based risk management firm whose clients include the NFL and Major League Baseball, told Outside the Lines. "If you're football, hockey or soccer, the insurance business doesn't want you."
During the November convention of the Casualty Actuarial Society in Las Vegas, William Primps, an insurance lawyer and former Yale running back, told hundreds of actuaries, "Overall, I think that there is a real threat to the viability of contact sports."
Outside the Lines interviewed insurance carriers and brokers, school administrators, lawyers, consultants, team and league officials, coaches and players and reviewed thousands of pages of court documents and insurance contracts for this story. The details shed light on an arcane but essential corner of the sports world reeling from a crisis that began in the NFL and continues to spin out in unexpected ways. The effects are being felt most acutely across football, but insurers increasingly view all sports associated with head trauma with caution, according to industry experts.
Organized sports, like most endeavors involving risk, can't exist without insurance. How deeply the crisis ultimately will be felt is a question that is being debated in trade publications and industry reports, at insurance conferences and among brokers who service the sports world. Scott Lunsford, a senior vice president with K&K Insurance, which finds coverage for amateur sports, acknowledged that several prominent carriers no longer cover head trauma but said numerous options remain available, though sometimes with restrictions that limit insurers' exposure.
"It's part of our business now, brain injury and concussions, and we've adjusted," Lunsford said.
"If you're football, hockey or soccer the insurance business doesn't want you."Alex Fairly, CEO of the Fairly Group
Butler said he believes carriers are "starting to get a handle on it, just as they have with other risk management situations." In an effort to ease insurers' fears, Pop Warner's law firm has taken the unusual step of staging seminars in which some panelists raised doubts about the connection between football and neurodegenerative disease.
Still, insurance coverage is already having a material effect on programs throughout the country.
Last spring, the Maricopa County Community Colleges in Arizona, citing costs and potential liability, announced that they were eliminating football at four schools, including a three-time junior college national champion. A task force concluded that the teams, consisting of 358 players, accounted for nearly one-third of all insurance costs for the district's 200,000 students.
In Bakersfield, California, the North of the River Recreation and Park District terminated its tackle football program at the end of this season, citing plummeting participation and rising insurance costs.
Another recreation department, in Hawkins County, Tennessee, decided to keep tackle football this year, even though its longtime insurer refused to cover the sport. The department found a new carrier under a policy that drove up overall insurance costs 27 percent to more than $13,000. The department's director, Tim Wilson, citing falling participation and rising costs, predicted that youth football will disappear within a decade. "We have insurance now, but who knows for how long?" he said.
In the years before football's concussion crisis, dozens of insurers -- including household names such as Fireman's Fund, The Hartford and Travelers -- insured the NFL without restrictions for traumatic brain injury. Many of those companies are now embroiled in a six-year lawsuit with the NFL in New York Supreme Court over who will pay legal fees and claims associated with the 2013 settlement of a class-action lawsuit that is expected to cost more than $1 billion. The market for amateur sports was even larger, according to industry experts, with insurers competing to provide a range of coverages for youth, high schools and colleges.
Insurers worry that concern over traumatic brain injury, like in the case of asbestos, will play out for decades, with carriers potentially on the hook for billions of dollars in legal and medical costs.
For this story, Outside the Lines hired legal researchers to document the growing universe of concussion litigation -- the primary reason behind the insurance industry's fears. Since 2005, when the first case of brain disease was reported in a former NFL player, thousands of concussion-related lawsuits have been filed in the United States, including class-action suits against the NFL, the NHL and the NCAA. Since the NFL settlement, concussion-related lawsuits involving at least 18 sports and activities have been filed in at least 29 states, Outside the Lines' research shows. They target not only professional sports but also youth leagues, school districts, athletic associations, equipment manufacturers, medical providers, coaches and athletic trainers.
The result is potentially catastrophic for organizations such as rec departments, youth leagues and school districts, as insurers seek to transfer risk back to those entities, which can least afford a major financial blow. In 2016, Pop Warner, which is registered with the Internal Revenue Service as a nonprofit organization, settled a lawsuit with the family of a former player who died of suicide and was found to have had CTE. In Washington state, the family of a high school football player who suffered a catastrophic brain injury won a $5 million settlement after arguing that coaches violated the Lystedt Law, which prescribes protocols for handling head injuries. The law has been replicated in all 50 states.
Richard Adler, a Seattle attorney who specializes in brain injuries and wrote the Lystedt Law, said insurers "should use their considerable power, influence and resources to promote player safety. Blaming the threat of litigation as a reason to withdraw from providing insurance to youth sports is shortsighted and does little to advance the need to prevent preventable brain injuries in youth sports."
Fred Langer, a personal injury lawyer who works with Adler on brain injury cases, said insurers "ought to be going out there and insisting that the law is followed, training the coaches, training people to do what is right. The question I would have for them is what is the solution for this? Do you want to eliminate contact sports? Because that's what it would be, right?"
In fact, pressure from litigation has already led to numerous improvements in player safety at all levels. The NFL has spent tens of millions of dollars on concussion research, sponsored a nationwide program called Heads Up to promote player safety and enacted dozens of rule changes designed to reduce head injuries. One of those rules for this season, an effort to curb targeting, generated intense preseason scrutiny and discussion among players, fans and coaches, even as commissioner Roger Goodell said, "Our focus is on how to take the head out of the game and make sure we're using the helmet as protection, and it's not being used as a weapon."
The NFL declined a request to interview executive vice president and chief financial officer Joseph Siclare for this story. NFL spokesman Brian McCarthy asked Outside the Lines for written questions but did not answer any of them.
Lee Gaby, an insurance consultant and former risk manager for hundreds of public school districts, said some insurance companies have begun to require concussion management plans and technology such as neuropsychological testing kits as "hammers" to encourage behavior that reduces claims.
But Gaby said he fears it won't be enough for some companies wary of huge potential losses.
"I'm tending to be on the side that this is going to be a lot bigger than we think. I don't know if I'd compare it to asbestos. I'm somewhere in the middle," he said. "But I just have a foreboding sense that there's so much more we don't know. No one wants to be the last to find out and be the one that's writing all the risk."
As claims mount, Gaby, who played high school football in Georgia, said he fears that an increasing number of school administrators will decide: "No more risk, no more football."
Alex Fairly, CEO of the Fairly Group, an Amarillo, Texas-based risk management firm whose clients include the NFL and Major League Baseball, says, "If you're football, hockey or soccer, the insurance business doesn't want you." Bill Roach for ESPN
ON MARCH 14, 2016, Jeff Miller, the NFL's executive vice president of health and safety initiatives, acknowledged the link between football and chronic traumatic encephalopathy in remarks to a congressional committee. Miller's statement was shocking: It was the first time a senior NFL official had publicly connected football and the disease that has been found in at least 110 deceased former players.
His statement set off alarms inside the offices of the NFL's insurer, Berkley Entertainment & Sports. In the concussion era, Berkley has become the lone carrier willing to cover pro football for head trauma. Miller's admission was a gift to plaintiff attorneys, who could cite it in lawsuits against the NFL. The stakes were enormous: Berkley, along with its clients, was potentially exposed to millions of dollars in future claims.
Within hours, top executives pressed Cindy Broschart, Berkley Entertainment's president, on whether the time had come to cut the NFL loose. Broschart held firm. She explained that Berkley had protected itself by raising deductibles to unprecedented levels and, after Miller's comments, would have the opportunity to push them up further.
Broschart ended up doing just that: When the NFL's policy expired last year, Berkley doubled the per-claim deductible to $1 million and significantly increased the "aggregate" -- the total amount teams are required to cover before Berkley spends a dime. The NFL, represented by Fairly, accepted the terms.
Fairly, one of the most prominent risk management experts in sports, declined to discuss the specifics of the deal. But he said the NFL's limited options reveal "how tenuous it is to buy insurance in professional sports. It literally rests in the hands of a single person in the world."
Over the past several years, the concussion crisis has brought about dozens of rule changes, innovations in protective equipment and a relentless public relations campaign to convince parents and athletes that the game has never been safer.
But the insurance industry isn't buying it. To an increasing number of carriers, football is a dam built atop an earthquake fault. A disaster might never occur, but the specter of huge potential losses is scaring many companies away.
"I don't want to use the word 'meltdown,' but there's a panic in the market," said Gaby.
To understand why requires some basic information about the $1.2 trillion insurance industry. Insurance customers, of course, are buying peace of mind: the knowledge that their financial needs will be met if a costly event takes place. Companies profit by betting that they will take in more in premiums and investment income than they pay out in claims. To price that risk, the carriers -- much like casinos and sports books -- calculate the odds that a loss will occur, mining mountains of data about everything from traffic accidents to mortality rates. Auto and life insurance are the craps tables and roulette wheels of the industry: The data set is so large that companies have a high probability of making money.
What scares the industry about football is the limited available data and the vast uncertainty. There are roughly 300,000 football-related concussions each year, according to an estimate by the University of Pittsburgh Medical Center's sports concussion program. But the prevalence of CTE, and the likelihood that current players will develop dementia or other disorders, is unknown. The "trigger" -- how and when the disease starts -- has not been established. CTE can be diagnosed only after death, and the symptoms, which range from depression to delusional behavior, might not surface for decades.
"Thirty years from now you could be on the hook, and that's a very difficult situation for an insurance company to be in."James Lynch, chief actuary for the Insurance Information Institute
In 2005, when the first CTE case was reported in a former NFL player, 25 scholarly papers that included the words "football" and "concussion" were published. Last year, there were 139, according to PubMed, a database of scientific research. Some of the studies have been ominous: Last April, researchers at the Veterans Administration Boston Healthcare System and Boston University reported that participating in tackle football before age 12 "appears to increase vulnerability to the effects of CTE and other brain disease or conditions."
In insurance parlance, traumatic brain injury is a "long-tail claim" that might take years to develop, then pay out indefinitely in the form of costly legal fees (to defend lawsuits and pay off settlements and judgments) and medical bills (to support disabled former players).
"Thirty years from now, you could be on the hook, and that's a very difficult situation for an insurance company to be in," said James Lynch, chief actuary for the Insurance Information Institute in New York. "This is why the industry is concerned about it. You want to be able to box up that risk."
The potential exposure for insurers is incalculable. After listening to a presentation on brain injuries and insurance at the annual Casualty Actuarial Society convention in Las Vegas, William Morrissey, a vice president and actuary for CNA Insurance, told the panel, "I'm wondering how big of a sleeping giant this is."
Morrissey noted that there are millions of former athletes exposed to repetitive head trauma who could file lawsuits against numerous targets, including schools, teams, leagues, coaches, athletic trainers and doctors. Insurers could be required to cover those legal costs.
"That's what scares me. I hope it scares everyone else," Morrissey told the panel.
Moderator Barbara Murray, director of the financial services sector at PricewaterhouseCoopers, agreed that insurers could be exposed to a "free-for-all nightmare."
The ultimate long-tail claim is asbestos. The link between the high-strength fiber, which was widely used in the construction industry, and the lung disease asbestosis was discovered in the mid-1960s. After more than 50 years of litigation, the industry still pays out $1.8 billion annually in asbestos-related claims.
Like asbestos-related diseases, CTE can take years to develop, increasing the possibility of decades of litigation. The pool of potential claimants is in the millions -- theoretically, any athlete -- with a variety of potential legal targets.
"There are parallels, and they are very real parallels," Lynch said.
But there's a vast difference between asbestosis, which still claims 12,000 to 15,000 lives annually in the United States, and CTE, which has far fewer documented cases and a much smaller pool of potential victims. One broker called asbestos "a tidal wave" and sports-related brain injury "a ripple."
Insurers have also "learned from their experience" from asbestos and are devising myriad strategies to limit costs, according to a 2016 report by S&P Global, a ratings agency. Many carriers are employing "exclusions" -- which immunize the company from head trauma claims -- or simply refusing to provide coverage.
Football and other sports are learning this the hard way.
When wrestling entrepreneur Vince McMahon decided to bring back the XFL, his first order of business was to look for insurance; without it, he knew, the league couldn't exist. Professional football requires two types of insurance: general liability and workers' compensation, which is mandatory under state laws. Pro sports teams need workers' compensation because the players -- unlike amateur athletes -- are employees.
"It's an existential question: Can I get adequate workers' compensation insurance? Can I get adequate general liability insurance?" said Oliver Luck, commissioner of the new XFL, which is set to launch next year. "It's overlooked, but it's important. But beyond important, it's statutory."
McMahon went to Fairly, the risk management expert, whom Luck calls "the insurance whisperer." Fairly started his career insuring ostriches. Later, he led the sports and entertainment division for Willis Towers Watson, a global risk management corporation. Then he split off in 2016 to start his own company in the Texas Panhandle.
Fairly, 55, is paid to see into the future. His views toward head trauma and risk were shaped by a recent battle that had enormous implications for pro sports. In California, thousands of former players, most from the NFL and Major League Baseball, were able to file workers' compensation claims -- even if they had played just one game in the state. The law cost the leagues and insurers hundreds of millions of dollars, until Fairly championed an effort, bankrolled by the leagues, that led the state legislature to change the law in 2013.
When the XFL last existed, in 2001, insurance companies were lining up to cover pro football.
Fairly had to break the news to McMahon: Now there was just one insurer that might be willing to cover his league without an exclusion for head trauma.
Fairly introduced McMahon to Cindy Broschart.
Cindy Broschart, president of Berkley Entertainment & Sports, is one of the most influential -- and anonymous -- people in sports. In the concussion era, Berkley has become the lone carrier willing to cover pro football for head trauma. Trevor Paulhus for ESPN
"I THINK BEING the last person standing, there is a lot of pressure put on us," Broschart told Outside the Lines. "Not only on ourselves, but we report up through two people: our CEO and our chairman."
Occasionally, when news surfaces about the latest study on football and CTE, Broschart said she gets calls from her bosses, asking, "Are you sure? Are you really sure?"
"You know, we're hoping that we're sure, but I can tell you, insurance is a gamble no matter what," she told Outside the Lines.
Broschart, 60, is one of the most influential -- and anonymous -- people in sports. In 1988, she was just starting out when she was transferred from Kansas City to Dallas to run the entertainment division of Gulf Insurance, a subsidiary of Travelers. Seven months later, Jerry Jones bought the Cowboys. He needed insurance. Broschart was 30, with no experience in sports. She won the business, largely because she knew the woman who handled risk management on a string of nursing homes that Jones owned in Arkansas.
Broschart and her longtime vice president, Michael Harris, slowly built a sports insurance powerhouse. In 2005, they took their team of about 50 people to W.R. Berkley, a $7 billion global insurance corporation run by William R. Berkley, a Harvard Business School graduate who founded the company with $2,500 in 1967.
There isn't much that Broschart hasn't seen. Along with sports, Berkley Entertainment, which is located on a manmade lake in Irving, Texas, insures movies, TV shows and rock concerts. Broschart once insured an anaconda for a reality show in which a man wearing a special suit would allow the snake to ingest him (both man and snake survived). The company paid out part of an $11 million settlement to a concert pianist whose fingertip was sheared off by a bathroom door. Broschart was involved in another claim in which a beam fell from the top of a set that was being assembled for a Who concert, killing a worker below.
"If you don't have the stomach for the loss, you can't be in the business," Broschart said.
Broschart's unflinching bet on football is based on three decades of experience, her belief in the enduring power of the sport and Berkley's business model, which she believes is as applicable in the concussion era as it was before.
Football, she said, is "one of those things where, I don't care what state you live in, it's at the core of the community. That's what built this country -- these sports and the gathering of people in their communities -- so I don't see that it's going away."
Above her desk, Broschart keeps a signed photo of pitcher Nolan Ryan, his fist cocked as he clamps a headlock on Robin Ventura in their famous 1993 brawl. Broschart would never say so, but the photo could be a metaphor for her relationship with the NFL. In most transactions, the richest and most powerful league has all the leverage, but not with its insurer. In one stark example, the league recently demanded that Berkley cover tens of millions of dollars in legal fees the NFL ran up defending a prescription drug lawsuit. Broschart fervently believed Berkley was not responsible and threatened to end the company's agreement to provide workers' compensation insurance to NFL teams, a response that immediately got the attention of senior league officials.
Fairly, who is working to mediate the dispute, declined to discuss specifics. But he said Broschart draws her authority from Berkley's exclusive position in an extremely tight market.
"This is a very powerful woman," he said. "Managing that relationship in this market is a balancing act. I've encountered no situation like it in 30 years as a broker."
Because the competition has essentially dropped out, Berkley has a virtual monopoly over pro football. The company's current contract with the NFL runs seven years -- an extraordinarily long time in an era in which both concussion research and litigation have exploded. Broschart said the contract was written to allow the company to raise prices if the environment changes.
"We have to be protected," she said.
Broschart and Harris said they're confident that Berkley's costs will be contained. Monetary damages for workers' compensation are capped. Even then, they said, it's not clear that the NFL and Berkley would be on the hook because players would have to prove that pro football alone -- not youth or college football -- was responsible for their injuries.
"At what point does it really manifest itself?" Harris said. "That's, for us, one of the issues."
There's another point of view on Berkley's aggressive strategy: The company could be hit with the type of financial apocalypse that rocked the industry after the dangers of asbestos were discovered. Some brokers believe that day is coming.
"It's not just CTE. CTE isn't going to be the expensive part," said one insurance executive who spoke to Outside the Lines on the condition of anonymity. "Dementia and every case of Parkinson's and Alzheimer's are going to be blamed on football. There will be a bevy of doctors in California and other states, and they're going to say, 'I'm sure it was because you played football.'"
Referring to the NFL's class-action settlement, the executive added, "It's going to make a billion look like the best deal the NFL ever made in the world. It's going to be way more money than that."
Largely out of public view, a glimpse of that is playing out in California. The state has the most liberal workers' compensation laws in the country. Recently, former players who decades ago reached injury settlements with NFL teams and their insurers have filed new claims. The players argue that the settlements did not cover traumatic brain injury.
In some cases, workers' compensation courts are concurring: A former player's 1989 settlement for "cumulative industrial injury," one court found in 2015, "does not extend to the then-unknown cumulative injury to the brain."
Pat Namanny, a Southern California workers' compensation lawyer, told Outside the Lines that he is currently handling nearly 100 previously settled cases in which former NFL players have filed new claims for head trauma.
Jon Butler, executive director of Pop Warner football, says the organization would be left with only "a couple possible solutions" if it were unable to obtain insurance coverage: declare bankruptcy or go out of business. Logan Cascia for ESPN
IN EARLY NOVEMBER, two dozen insurers gathered in a meeting room in Berkeley, California, for a seminar on traumatic brain injury. The panel was organized by Wilson Elser LLP, a law firm that handles concussion litigation, and one of its clients, Pop Warner, the nation's oldest and largest youth football organization.
The panel was stacked with CTE skeptics. They included Merril Hoge, a former Pittsburgh Steelers running back and ex-ESPN analyst, and Dr. Peter Cummings, a Boston University neuropathologist. Hoge and Cummings are co-authors of the recent book "Brainwashed: The Bad Science Behind CTE and the Plot to Destroy Football."
The speakers told the insurers that most everything they'd heard about CTE was wrong -- fueled by agenda-driven science and media hysteria. Dr. Rudy Castellani, a West Virginia University neuropathologist, said CTE is neither a neurodegenerative disease nor a concern to athletes. "There's nothing there," Castellani said. Other panelists excoriated Dr. Ann McKee, who has diagnosed more CTE cases than any other researcher in the country. Hoge accused McKee, who was not present, of pushing "unscientific" theories.
The gathering of strange bedfellows -- Pop Warner, lawyers and insurance agents -- is an example of the measures organizations are taking to try to ease insurers' fears. Butler, Pop Warner's executive director, also attended. He said Wilson Elser, supported by Pop Warner, has staged several seminars across the country "to educate us and particularly the insurance industry."
Butler said the tone of the Berkeley seminar was more strident than the others, in part because Hoge and Cummings were promoting their book. He said other seminars offered more balanced viewpoints.
Butler said it's important for Pop Warner to present all sides of the scientific debate over football and brain disease. "A lot of the headlines in the media are far ahead of the science," he said. "It gets scary, and that's why the insurers sometimes make those exclusions or change their rates."
The NFL, with billions of dollars in revenue, can survive almost any financial blow. But youth sports is different: Without insurance, Pop Warner couldn't survive. Butler said the organization would be left with only "a couple possible solutions" if it is unable to obtain coverage. "The two most obvious are either we go out of business or we declare bankruptcy, like USA Gymnastics." In December, USA Gymnastics filed for bankruptcy in response to litigation following the Larry Nassar sexual abuse scandal.
The wave of lawsuits that began in the NFL hit Pop Warner three years ago. Debra Pyka sued the organization and Lexington Insurance in Wisconsin, arguing that her 25-year-old son's suicide was the "consequence" of injuries from four years of youth football. The suit accused Pop Warner of negligence for "allowing small children to play a violent pseudo warrior sport."
Pyka demanded $5 million. Pop Warner's general liability policy with Lexington covered the organization for up to $2 million.
It was a difficult case to prove. Pyka needed to provide evidence that her son's suicide was connected not only to CTE but also to his brief stint in youth football. In court papers, Pop Warner stated that Pyka was waging "a public crusade to ban football. This lawsuit is the wrong vehicle for that crusade."
Before a judge could rule on a motion to dismiss the case, Pop Warner settled with Pyka for less than $2 million (terms were not disclosed). Butler said he was satisfied, suggesting that the settlement was well below the insurance limit. But he said Pop Warner had little choice.
"Ultimately, it's not our decision," Butler said. "We had input, but ultimately, it was the insurance companies."
When Pop Warner went to renew its three-year policy, Lexington, a subsidiary of AIG, refused to provide coverage without an exclusion -- not just for concussions but for any neurological injury. "If [all] those are excluded, that's pretty scary," Butler said. A spokesman for AIG declined to comment. When Pop Warner went to look for another carrier five years ago, Butler said just one would provide coverage without an exclusion: Scottsdale Insurance, a subsidiary of Nationwide that specializes in high-risk businesses and individuals.
Scottsdale limited Pop Warner's policy to one year, meaning Pop Warner would have to renew its insurance annually. The insurer plays a direct role in player safety. Over the past several years, Pop Warner has significantly reduced contact during practices and eliminated the kickoff at the three youngest age levels. Butler said the organization annually presents its rulebook and risk management manual to Scottsdale for review. A Scottsdale spokesman confirmed that it insures Pop Warner but declined further comment.
Butler called Pop Warner the "canary in the coal mine." He said the effort to educate the insurance industry is supported by other youth sports organizations that fear they will be unable to obtain insurance because of litigation. In November, for example, a federal appeals court reinstated a class-action lawsuit that accused USA Water Polo of failing to protect athletes who were sent back into games after suffering concussions.
"Certainly, if insurance goes away, it's not going to be just football. It's going to be all of youth sports," Butler said. "I think it would be the proverbial domino effect."
Robert Westbrook, a 230-pound linebacker for Glendale Community College in Arizona, says football got his life back on track, and he is heartbroken over Maricopa County Community Colleges' decision to eliminate football due to insurance cost concerns. Bill Roach for ESPN
IN MID-NOVEMBER, in the baking Arizona heat, Robert Westbrook, a 230-pound linebacker for Glendale Community College, stood on a football field, crying.
"Junior college football is almost a lifesaver for me," he said. "So I'm really emotional they're getting rid of it."
Glendale, a three-time junior college national champion, had lost 44-17 to rival Scottsdale. It wasn't just Glendale's final game of the season. It was the school's final game -- forever. Earlier in the year, the Maricopa County Community Colleges had announced that it was eliminating football, a decision that killed off four teams: Glendale, Scottsdale, Mesa and Phoenix.
Westbrook hugged his teammates hard after the game. After he got out of the Marine Corps, he said, "I was making some bad decisions. Junior college football got my life together, got me back on track." Ryan Felker, Mesa's head coach, predicted, "It's going to affect a lot of young men in the next few years. It's going to affect our communities."
As emotional as they were, Maricopa's players and coaches did not fully understand why football was over for them.
Maricopa is one of the largest community college districts in the country, with 10 schools and more than 200,000 students. Faced with a sudden loss of state funding, the district took a hard look at its finances.
One line item was jarring: football.
Specifically, Maricopa found that it was spending more than $1 million a year on accident and catastrophic insurance premiums. More than 30 percent of that cost, $319,000, went toward the district's four teams. "When you see it in black and white, it pops right off the page at you," said Sheri Swain, the district's director of enterprise risk management.
A task force, noting that football also accounted for more than half of sports insurance claims in the community college system, recommended eliminating the sport.
The administration and the district governing board knew the decision would be controversial. One board member, Dana Saar, was a 69-year-old lifelong Green Bay Packers fan who for 25 years had served as public address announcer for a local high school football team. When Saar heard that football was suddenly on the chopping block, he was incredulous.
"Then I started looking into it," he said.
More than the annual insurance costs, Saar was alarmed by the potential liability if former players sued the district for brain injuries. "We're not big enough to cover our future legal issues," he said. "It would be borne by us because our insurance companies are hedging significantly on whether or not that's going to be covered in the future."
The specter of huge legal payouts is "potentially catastrophic for public colleges and high schools," Saar said. "The lawyers, they're drooling over this."
Saar decided to support chancellor Maria Harper-Marinick, who made the decision after consulting with him and other board members. The announcement immediately provoked a community backlash.
Colleges across all levels have been disrupted by the threat of litigation, sowing chaos for insurers whose policies are spread across decades and involve hundreds of schools, conferences and governing bodies.
Over the past five years, well more than 100 individual lawsuits have been filed against the NCAA and its members seeking damages for traumatic brain injuries. Last June, the first trial involving football and CTE ended after three days. The NCAA abruptly settled with the widow of a former University of Texas linebacker and defensive tackle who was diagnosed with the disease after his death in 2015 -- 44 years after he last played.
Plaintiff attorneys predicted that the settlement would lead to more lawsuits. "That will bust open the floodgates, the NCAA settling midtrial," said Paul Anderson, a sports attorney in Kansas City, Missouri, who has been heavily involved in concussion litigation.
John Breckenridge, a former tight end at Sacramento State University and the CEO of SquarePeg Insurance Solutions, a new company that connects colleges and insurers, said he fears that a problem that began in the NFL has become "very threatening" to the entire sport.
"It's taken a while, but it's trickling down to each level of the game," he said. "I don't know that the general public really understands it. There's only so much that the liability market can take or will take."
Greg Amante, a producer in ESPN's Enterprise and Investigative Unit, Andrew Webber of the Northwestern University Pritzker School of Law, and Adam Conway of the University of California, Berkeley, School of Law contributed to this story.
Sorry, I hate to give them clicks; but, the gist of this article is that Football Leagues and helmet/equipment manufacturers are finding insurance markets drying up and how this may impact the future.
- Steve Fainaru
- Mark Fainaru-Wada
The NFL no longer has general liability insurance covering head trauma, according to multiple sources; just one carrier is willing to provide workers' compensation coverage for NFL teams. Before concussion litigation roiled the NFL beginning in 2011, at least a dozen carriers occupied the insurance market for pro football, according to industry experts.
The insurance choices for football helmet manufacturers are equally slim; one helmet company executive said he was aware of only one. Pop Warner Little Scholars, which oversees 225,000 youth players, was forced to switch insurers after its longtime carrier, a subsidiary of the insurance giant AIG, refused to provide coverage without an exclusion for any neurological injury.
"People say football will never go away, but if we can't get insurance, it will," Jon Butler, Pop Warner's executive director, lamented to colleagues after discovering that just one carrier was willing to cover the organization for head trauma, according to a person who was present.
Dr. Julian Bailes, Pop Warner's medical director and a member of the NFL's Head, Neck and Spine Committee, told Outside the Lines "insurance coverage is arguably the biggest threat to the sport."
With youth participation rates continuing to fall, the insurance crisis adds another layer of uncertainty to the future of America's No. 1 sport. Insurance companies, which earn billions of dollars each year by taking on risk, are increasingly reluctant to bet on football and other sports associated with traumatic brain injuries. Some insurance industry executives compare the issue to asbestos, an occupational hazard that has cost insurers at least $100 billion. Traumatic brain injury "is an emerging latent exposure the likes of which the insurance industry has not seen in decades," Joe Cellura, president of North American casualty at Allied World, wrote in a blog post last year for the website Risk & Insurance. Cellura declined to comment for this story.
"Basically, the world has left the marketplace," Alex Fairly, CEO of the Fairly Group, an Amarillo, Texas-based risk management firm whose clients include the NFL and Major League Baseball, told Outside the Lines. "If you're football, hockey or soccer, the insurance business doesn't want you."
During the November convention of the Casualty Actuarial Society in Las Vegas, William Primps, an insurance lawyer and former Yale running back, told hundreds of actuaries, "Overall, I think that there is a real threat to the viability of contact sports."
Outside the Lines interviewed insurance carriers and brokers, school administrators, lawyers, consultants, team and league officials, coaches and players and reviewed thousands of pages of court documents and insurance contracts for this story. The details shed light on an arcane but essential corner of the sports world reeling from a crisis that began in the NFL and continues to spin out in unexpected ways. The effects are being felt most acutely across football, but insurers increasingly view all sports associated with head trauma with caution, according to industry experts.
Organized sports, like most endeavors involving risk, can't exist without insurance. How deeply the crisis ultimately will be felt is a question that is being debated in trade publications and industry reports, at insurance conferences and among brokers who service the sports world. Scott Lunsford, a senior vice president with K&K Insurance, which finds coverage for amateur sports, acknowledged that several prominent carriers no longer cover head trauma but said numerous options remain available, though sometimes with restrictions that limit insurers' exposure.
"It's part of our business now, brain injury and concussions, and we've adjusted," Lunsford said.
"If you're football, hockey or soccer the insurance business doesn't want you."Alex Fairly, CEO of the Fairly Group
Butler said he believes carriers are "starting to get a handle on it, just as they have with other risk management situations." In an effort to ease insurers' fears, Pop Warner's law firm has taken the unusual step of staging seminars in which some panelists raised doubts about the connection between football and neurodegenerative disease.
Still, insurance coverage is already having a material effect on programs throughout the country.
Last spring, the Maricopa County Community Colleges in Arizona, citing costs and potential liability, announced that they were eliminating football at four schools, including a three-time junior college national champion. A task force concluded that the teams, consisting of 358 players, accounted for nearly one-third of all insurance costs for the district's 200,000 students.
In Bakersfield, California, the North of the River Recreation and Park District terminated its tackle football program at the end of this season, citing plummeting participation and rising insurance costs.
Another recreation department, in Hawkins County, Tennessee, decided to keep tackle football this year, even though its longtime insurer refused to cover the sport. The department found a new carrier under a policy that drove up overall insurance costs 27 percent to more than $13,000. The department's director, Tim Wilson, citing falling participation and rising costs, predicted that youth football will disappear within a decade. "We have insurance now, but who knows for how long?" he said.
In the years before football's concussion crisis, dozens of insurers -- including household names such as Fireman's Fund, The Hartford and Travelers -- insured the NFL without restrictions for traumatic brain injury. Many of those companies are now embroiled in a six-year lawsuit with the NFL in New York Supreme Court over who will pay legal fees and claims associated with the 2013 settlement of a class-action lawsuit that is expected to cost more than $1 billion. The market for amateur sports was even larger, according to industry experts, with insurers competing to provide a range of coverages for youth, high schools and colleges.
Insurers worry that concern over traumatic brain injury, like in the case of asbestos, will play out for decades, with carriers potentially on the hook for billions of dollars in legal and medical costs.
For this story, Outside the Lines hired legal researchers to document the growing universe of concussion litigation -- the primary reason behind the insurance industry's fears. Since 2005, when the first case of brain disease was reported in a former NFL player, thousands of concussion-related lawsuits have been filed in the United States, including class-action suits against the NFL, the NHL and the NCAA. Since the NFL settlement, concussion-related lawsuits involving at least 18 sports and activities have been filed in at least 29 states, Outside the Lines' research shows. They target not only professional sports but also youth leagues, school districts, athletic associations, equipment manufacturers, medical providers, coaches and athletic trainers.
The result is potentially catastrophic for organizations such as rec departments, youth leagues and school districts, as insurers seek to transfer risk back to those entities, which can least afford a major financial blow. In 2016, Pop Warner, which is registered with the Internal Revenue Service as a nonprofit organization, settled a lawsuit with the family of a former player who died of suicide and was found to have had CTE. In Washington state, the family of a high school football player who suffered a catastrophic brain injury won a $5 million settlement after arguing that coaches violated the Lystedt Law, which prescribes protocols for handling head injuries. The law has been replicated in all 50 states.
Richard Adler, a Seattle attorney who specializes in brain injuries and wrote the Lystedt Law, said insurers "should use their considerable power, influence and resources to promote player safety. Blaming the threat of litigation as a reason to withdraw from providing insurance to youth sports is shortsighted and does little to advance the need to prevent preventable brain injuries in youth sports."
Fred Langer, a personal injury lawyer who works with Adler on brain injury cases, said insurers "ought to be going out there and insisting that the law is followed, training the coaches, training people to do what is right. The question I would have for them is what is the solution for this? Do you want to eliminate contact sports? Because that's what it would be, right?"
In fact, pressure from litigation has already led to numerous improvements in player safety at all levels. The NFL has spent tens of millions of dollars on concussion research, sponsored a nationwide program called Heads Up to promote player safety and enacted dozens of rule changes designed to reduce head injuries. One of those rules for this season, an effort to curb targeting, generated intense preseason scrutiny and discussion among players, fans and coaches, even as commissioner Roger Goodell said, "Our focus is on how to take the head out of the game and make sure we're using the helmet as protection, and it's not being used as a weapon."
The NFL declined a request to interview executive vice president and chief financial officer Joseph Siclare for this story. NFL spokesman Brian McCarthy asked Outside the Lines for written questions but did not answer any of them.
Lee Gaby, an insurance consultant and former risk manager for hundreds of public school districts, said some insurance companies have begun to require concussion management plans and technology such as neuropsychological testing kits as "hammers" to encourage behavior that reduces claims.
But Gaby said he fears it won't be enough for some companies wary of huge potential losses.
"I'm tending to be on the side that this is going to be a lot bigger than we think. I don't know if I'd compare it to asbestos. I'm somewhere in the middle," he said. "But I just have a foreboding sense that there's so much more we don't know. No one wants to be the last to find out and be the one that's writing all the risk."
As claims mount, Gaby, who played high school football in Georgia, said he fears that an increasing number of school administrators will decide: "No more risk, no more football."
Alex Fairly, CEO of the Fairly Group, an Amarillo, Texas-based risk management firm whose clients include the NFL and Major League Baseball, says, "If you're football, hockey or soccer, the insurance business doesn't want you." Bill Roach for ESPN
ON MARCH 14, 2016, Jeff Miller, the NFL's executive vice president of health and safety initiatives, acknowledged the link between football and chronic traumatic encephalopathy in remarks to a congressional committee. Miller's statement was shocking: It was the first time a senior NFL official had publicly connected football and the disease that has been found in at least 110 deceased former players.
His statement set off alarms inside the offices of the NFL's insurer, Berkley Entertainment & Sports. In the concussion era, Berkley has become the lone carrier willing to cover pro football for head trauma. Miller's admission was a gift to plaintiff attorneys, who could cite it in lawsuits against the NFL. The stakes were enormous: Berkley, along with its clients, was potentially exposed to millions of dollars in future claims.
Within hours, top executives pressed Cindy Broschart, Berkley Entertainment's president, on whether the time had come to cut the NFL loose. Broschart held firm. She explained that Berkley had protected itself by raising deductibles to unprecedented levels and, after Miller's comments, would have the opportunity to push them up further.
Broschart ended up doing just that: When the NFL's policy expired last year, Berkley doubled the per-claim deductible to $1 million and significantly increased the "aggregate" -- the total amount teams are required to cover before Berkley spends a dime. The NFL, represented by Fairly, accepted the terms.
Fairly, one of the most prominent risk management experts in sports, declined to discuss the specifics of the deal. But he said the NFL's limited options reveal "how tenuous it is to buy insurance in professional sports. It literally rests in the hands of a single person in the world."
Over the past several years, the concussion crisis has brought about dozens of rule changes, innovations in protective equipment and a relentless public relations campaign to convince parents and athletes that the game has never been safer.
But the insurance industry isn't buying it. To an increasing number of carriers, football is a dam built atop an earthquake fault. A disaster might never occur, but the specter of huge potential losses is scaring many companies away.
"I don't want to use the word 'meltdown,' but there's a panic in the market," said Gaby.
To understand why requires some basic information about the $1.2 trillion insurance industry. Insurance customers, of course, are buying peace of mind: the knowledge that their financial needs will be met if a costly event takes place. Companies profit by betting that they will take in more in premiums and investment income than they pay out in claims. To price that risk, the carriers -- much like casinos and sports books -- calculate the odds that a loss will occur, mining mountains of data about everything from traffic accidents to mortality rates. Auto and life insurance are the craps tables and roulette wheels of the industry: The data set is so large that companies have a high probability of making money.
What scares the industry about football is the limited available data and the vast uncertainty. There are roughly 300,000 football-related concussions each year, according to an estimate by the University of Pittsburgh Medical Center's sports concussion program. But the prevalence of CTE, and the likelihood that current players will develop dementia or other disorders, is unknown. The "trigger" -- how and when the disease starts -- has not been established. CTE can be diagnosed only after death, and the symptoms, which range from depression to delusional behavior, might not surface for decades.
"Thirty years from now you could be on the hook, and that's a very difficult situation for an insurance company to be in."James Lynch, chief actuary for the Insurance Information Institute
In 2005, when the first CTE case was reported in a former NFL player, 25 scholarly papers that included the words "football" and "concussion" were published. Last year, there were 139, according to PubMed, a database of scientific research. Some of the studies have been ominous: Last April, researchers at the Veterans Administration Boston Healthcare System and Boston University reported that participating in tackle football before age 12 "appears to increase vulnerability to the effects of CTE and other brain disease or conditions."
In insurance parlance, traumatic brain injury is a "long-tail claim" that might take years to develop, then pay out indefinitely in the form of costly legal fees (to defend lawsuits and pay off settlements and judgments) and medical bills (to support disabled former players).
"Thirty years from now, you could be on the hook, and that's a very difficult situation for an insurance company to be in," said James Lynch, chief actuary for the Insurance Information Institute in New York. "This is why the industry is concerned about it. You want to be able to box up that risk."
The potential exposure for insurers is incalculable. After listening to a presentation on brain injuries and insurance at the annual Casualty Actuarial Society convention in Las Vegas, William Morrissey, a vice president and actuary for CNA Insurance, told the panel, "I'm wondering how big of a sleeping giant this is."
Morrissey noted that there are millions of former athletes exposed to repetitive head trauma who could file lawsuits against numerous targets, including schools, teams, leagues, coaches, athletic trainers and doctors. Insurers could be required to cover those legal costs.
"That's what scares me. I hope it scares everyone else," Morrissey told the panel.
Moderator Barbara Murray, director of the financial services sector at PricewaterhouseCoopers, agreed that insurers could be exposed to a "free-for-all nightmare."
The ultimate long-tail claim is asbestos. The link between the high-strength fiber, which was widely used in the construction industry, and the lung disease asbestosis was discovered in the mid-1960s. After more than 50 years of litigation, the industry still pays out $1.8 billion annually in asbestos-related claims.
Like asbestos-related diseases, CTE can take years to develop, increasing the possibility of decades of litigation. The pool of potential claimants is in the millions -- theoretically, any athlete -- with a variety of potential legal targets.
"There are parallels, and they are very real parallels," Lynch said.
But there's a vast difference between asbestosis, which still claims 12,000 to 15,000 lives annually in the United States, and CTE, which has far fewer documented cases and a much smaller pool of potential victims. One broker called asbestos "a tidal wave" and sports-related brain injury "a ripple."
Insurers have also "learned from their experience" from asbestos and are devising myriad strategies to limit costs, according to a 2016 report by S&P Global, a ratings agency. Many carriers are employing "exclusions" -- which immunize the company from head trauma claims -- or simply refusing to provide coverage.
Football and other sports are learning this the hard way.
When wrestling entrepreneur Vince McMahon decided to bring back the XFL, his first order of business was to look for insurance; without it, he knew, the league couldn't exist. Professional football requires two types of insurance: general liability and workers' compensation, which is mandatory under state laws. Pro sports teams need workers' compensation because the players -- unlike amateur athletes -- are employees.
"It's an existential question: Can I get adequate workers' compensation insurance? Can I get adequate general liability insurance?" said Oliver Luck, commissioner of the new XFL, which is set to launch next year. "It's overlooked, but it's important. But beyond important, it's statutory."
McMahon went to Fairly, the risk management expert, whom Luck calls "the insurance whisperer." Fairly started his career insuring ostriches. Later, he led the sports and entertainment division for Willis Towers Watson, a global risk management corporation. Then he split off in 2016 to start his own company in the Texas Panhandle.
Fairly, 55, is paid to see into the future. His views toward head trauma and risk were shaped by a recent battle that had enormous implications for pro sports. In California, thousands of former players, most from the NFL and Major League Baseball, were able to file workers' compensation claims -- even if they had played just one game in the state. The law cost the leagues and insurers hundreds of millions of dollars, until Fairly championed an effort, bankrolled by the leagues, that led the state legislature to change the law in 2013.
When the XFL last existed, in 2001, insurance companies were lining up to cover pro football.
Fairly had to break the news to McMahon: Now there was just one insurer that might be willing to cover his league without an exclusion for head trauma.
Fairly introduced McMahon to Cindy Broschart.
Cindy Broschart, president of Berkley Entertainment & Sports, is one of the most influential -- and anonymous -- people in sports. In the concussion era, Berkley has become the lone carrier willing to cover pro football for head trauma. Trevor Paulhus for ESPN
"I THINK BEING the last person standing, there is a lot of pressure put on us," Broschart told Outside the Lines. "Not only on ourselves, but we report up through two people: our CEO and our chairman."
Occasionally, when news surfaces about the latest study on football and CTE, Broschart said she gets calls from her bosses, asking, "Are you sure? Are you really sure?"
"You know, we're hoping that we're sure, but I can tell you, insurance is a gamble no matter what," she told Outside the Lines.
Broschart, 60, is one of the most influential -- and anonymous -- people in sports. In 1988, she was just starting out when she was transferred from Kansas City to Dallas to run the entertainment division of Gulf Insurance, a subsidiary of Travelers. Seven months later, Jerry Jones bought the Cowboys. He needed insurance. Broschart was 30, with no experience in sports. She won the business, largely because she knew the woman who handled risk management on a string of nursing homes that Jones owned in Arkansas.
Broschart and her longtime vice president, Michael Harris, slowly built a sports insurance powerhouse. In 2005, they took their team of about 50 people to W.R. Berkley, a $7 billion global insurance corporation run by William R. Berkley, a Harvard Business School graduate who founded the company with $2,500 in 1967.
There isn't much that Broschart hasn't seen. Along with sports, Berkley Entertainment, which is located on a manmade lake in Irving, Texas, insures movies, TV shows and rock concerts. Broschart once insured an anaconda for a reality show in which a man wearing a special suit would allow the snake to ingest him (both man and snake survived). The company paid out part of an $11 million settlement to a concert pianist whose fingertip was sheared off by a bathroom door. Broschart was involved in another claim in which a beam fell from the top of a set that was being assembled for a Who concert, killing a worker below.
"If you don't have the stomach for the loss, you can't be in the business," Broschart said.
Broschart's unflinching bet on football is based on three decades of experience, her belief in the enduring power of the sport and Berkley's business model, which she believes is as applicable in the concussion era as it was before.
Football, she said, is "one of those things where, I don't care what state you live in, it's at the core of the community. That's what built this country -- these sports and the gathering of people in their communities -- so I don't see that it's going away."
Above her desk, Broschart keeps a signed photo of pitcher Nolan Ryan, his fist cocked as he clamps a headlock on Robin Ventura in their famous 1993 brawl. Broschart would never say so, but the photo could be a metaphor for her relationship with the NFL. In most transactions, the richest and most powerful league has all the leverage, but not with its insurer. In one stark example, the league recently demanded that Berkley cover tens of millions of dollars in legal fees the NFL ran up defending a prescription drug lawsuit. Broschart fervently believed Berkley was not responsible and threatened to end the company's agreement to provide workers' compensation insurance to NFL teams, a response that immediately got the attention of senior league officials.
Fairly, who is working to mediate the dispute, declined to discuss specifics. But he said Broschart draws her authority from Berkley's exclusive position in an extremely tight market.
"This is a very powerful woman," he said. "Managing that relationship in this market is a balancing act. I've encountered no situation like it in 30 years as a broker."
Because the competition has essentially dropped out, Berkley has a virtual monopoly over pro football. The company's current contract with the NFL runs seven years -- an extraordinarily long time in an era in which both concussion research and litigation have exploded. Broschart said the contract was written to allow the company to raise prices if the environment changes.
"We have to be protected," she said.
Broschart and Harris said they're confident that Berkley's costs will be contained. Monetary damages for workers' compensation are capped. Even then, they said, it's not clear that the NFL and Berkley would be on the hook because players would have to prove that pro football alone -- not youth or college football -- was responsible for their injuries.
"At what point does it really manifest itself?" Harris said. "That's, for us, one of the issues."
There's another point of view on Berkley's aggressive strategy: The company could be hit with the type of financial apocalypse that rocked the industry after the dangers of asbestos were discovered. Some brokers believe that day is coming.
"It's not just CTE. CTE isn't going to be the expensive part," said one insurance executive who spoke to Outside the Lines on the condition of anonymity. "Dementia and every case of Parkinson's and Alzheimer's are going to be blamed on football. There will be a bevy of doctors in California and other states, and they're going to say, 'I'm sure it was because you played football.'"
Referring to the NFL's class-action settlement, the executive added, "It's going to make a billion look like the best deal the NFL ever made in the world. It's going to be way more money than that."
Largely out of public view, a glimpse of that is playing out in California. The state has the most liberal workers' compensation laws in the country. Recently, former players who decades ago reached injury settlements with NFL teams and their insurers have filed new claims. The players argue that the settlements did not cover traumatic brain injury.
In some cases, workers' compensation courts are concurring: A former player's 1989 settlement for "cumulative industrial injury," one court found in 2015, "does not extend to the then-unknown cumulative injury to the brain."
Pat Namanny, a Southern California workers' compensation lawyer, told Outside the Lines that he is currently handling nearly 100 previously settled cases in which former NFL players have filed new claims for head trauma.
Jon Butler, executive director of Pop Warner football, says the organization would be left with only "a couple possible solutions" if it were unable to obtain insurance coverage: declare bankruptcy or go out of business. Logan Cascia for ESPN
IN EARLY NOVEMBER, two dozen insurers gathered in a meeting room in Berkeley, California, for a seminar on traumatic brain injury. The panel was organized by Wilson Elser LLP, a law firm that handles concussion litigation, and one of its clients, Pop Warner, the nation's oldest and largest youth football organization.
The panel was stacked with CTE skeptics. They included Merril Hoge, a former Pittsburgh Steelers running back and ex-ESPN analyst, and Dr. Peter Cummings, a Boston University neuropathologist. Hoge and Cummings are co-authors of the recent book "Brainwashed: The Bad Science Behind CTE and the Plot to Destroy Football."
The speakers told the insurers that most everything they'd heard about CTE was wrong -- fueled by agenda-driven science and media hysteria. Dr. Rudy Castellani, a West Virginia University neuropathologist, said CTE is neither a neurodegenerative disease nor a concern to athletes. "There's nothing there," Castellani said. Other panelists excoriated Dr. Ann McKee, who has diagnosed more CTE cases than any other researcher in the country. Hoge accused McKee, who was not present, of pushing "unscientific" theories.
The gathering of strange bedfellows -- Pop Warner, lawyers and insurance agents -- is an example of the measures organizations are taking to try to ease insurers' fears. Butler, Pop Warner's executive director, also attended. He said Wilson Elser, supported by Pop Warner, has staged several seminars across the country "to educate us and particularly the insurance industry."
Butler said the tone of the Berkeley seminar was more strident than the others, in part because Hoge and Cummings were promoting their book. He said other seminars offered more balanced viewpoints.
Butler said it's important for Pop Warner to present all sides of the scientific debate over football and brain disease. "A lot of the headlines in the media are far ahead of the science," he said. "It gets scary, and that's why the insurers sometimes make those exclusions or change their rates."
The NFL, with billions of dollars in revenue, can survive almost any financial blow. But youth sports is different: Without insurance, Pop Warner couldn't survive. Butler said the organization would be left with only "a couple possible solutions" if it is unable to obtain coverage. "The two most obvious are either we go out of business or we declare bankruptcy, like USA Gymnastics." In December, USA Gymnastics filed for bankruptcy in response to litigation following the Larry Nassar sexual abuse scandal.
The wave of lawsuits that began in the NFL hit Pop Warner three years ago. Debra Pyka sued the organization and Lexington Insurance in Wisconsin, arguing that her 25-year-old son's suicide was the "consequence" of injuries from four years of youth football. The suit accused Pop Warner of negligence for "allowing small children to play a violent pseudo warrior sport."
Pyka demanded $5 million. Pop Warner's general liability policy with Lexington covered the organization for up to $2 million.
It was a difficult case to prove. Pyka needed to provide evidence that her son's suicide was connected not only to CTE but also to his brief stint in youth football. In court papers, Pop Warner stated that Pyka was waging "a public crusade to ban football. This lawsuit is the wrong vehicle for that crusade."
Before a judge could rule on a motion to dismiss the case, Pop Warner settled with Pyka for less than $2 million (terms were not disclosed). Butler said he was satisfied, suggesting that the settlement was well below the insurance limit. But he said Pop Warner had little choice.
"Ultimately, it's not our decision," Butler said. "We had input, but ultimately, it was the insurance companies."
When Pop Warner went to renew its three-year policy, Lexington, a subsidiary of AIG, refused to provide coverage without an exclusion -- not just for concussions but for any neurological injury. "If [all] those are excluded, that's pretty scary," Butler said. A spokesman for AIG declined to comment. When Pop Warner went to look for another carrier five years ago, Butler said just one would provide coverage without an exclusion: Scottsdale Insurance, a subsidiary of Nationwide that specializes in high-risk businesses and individuals.
Scottsdale limited Pop Warner's policy to one year, meaning Pop Warner would have to renew its insurance annually. The insurer plays a direct role in player safety. Over the past several years, Pop Warner has significantly reduced contact during practices and eliminated the kickoff at the three youngest age levels. Butler said the organization annually presents its rulebook and risk management manual to Scottsdale for review. A Scottsdale spokesman confirmed that it insures Pop Warner but declined further comment.
Butler called Pop Warner the "canary in the coal mine." He said the effort to educate the insurance industry is supported by other youth sports organizations that fear they will be unable to obtain insurance because of litigation. In November, for example, a federal appeals court reinstated a class-action lawsuit that accused USA Water Polo of failing to protect athletes who were sent back into games after suffering concussions.
"Certainly, if insurance goes away, it's not going to be just football. It's going to be all of youth sports," Butler said. "I think it would be the proverbial domino effect."
Robert Westbrook, a 230-pound linebacker for Glendale Community College in Arizona, says football got his life back on track, and he is heartbroken over Maricopa County Community Colleges' decision to eliminate football due to insurance cost concerns. Bill Roach for ESPN
IN MID-NOVEMBER, in the baking Arizona heat, Robert Westbrook, a 230-pound linebacker for Glendale Community College, stood on a football field, crying.
"Junior college football is almost a lifesaver for me," he said. "So I'm really emotional they're getting rid of it."
Glendale, a three-time junior college national champion, had lost 44-17 to rival Scottsdale. It wasn't just Glendale's final game of the season. It was the school's final game -- forever. Earlier in the year, the Maricopa County Community Colleges had announced that it was eliminating football, a decision that killed off four teams: Glendale, Scottsdale, Mesa and Phoenix.
Westbrook hugged his teammates hard after the game. After he got out of the Marine Corps, he said, "I was making some bad decisions. Junior college football got my life together, got me back on track." Ryan Felker, Mesa's head coach, predicted, "It's going to affect a lot of young men in the next few years. It's going to affect our communities."
As emotional as they were, Maricopa's players and coaches did not fully understand why football was over for them.
Maricopa is one of the largest community college districts in the country, with 10 schools and more than 200,000 students. Faced with a sudden loss of state funding, the district took a hard look at its finances.
One line item was jarring: football.
Specifically, Maricopa found that it was spending more than $1 million a year on accident and catastrophic insurance premiums. More than 30 percent of that cost, $319,000, went toward the district's four teams. "When you see it in black and white, it pops right off the page at you," said Sheri Swain, the district's director of enterprise risk management.
A task force, noting that football also accounted for more than half of sports insurance claims in the community college system, recommended eliminating the sport.
The administration and the district governing board knew the decision would be controversial. One board member, Dana Saar, was a 69-year-old lifelong Green Bay Packers fan who for 25 years had served as public address announcer for a local high school football team. When Saar heard that football was suddenly on the chopping block, he was incredulous.
"Then I started looking into it," he said.
More than the annual insurance costs, Saar was alarmed by the potential liability if former players sued the district for brain injuries. "We're not big enough to cover our future legal issues," he said. "It would be borne by us because our insurance companies are hedging significantly on whether or not that's going to be covered in the future."
The specter of huge legal payouts is "potentially catastrophic for public colleges and high schools," Saar said. "The lawyers, they're drooling over this."
Saar decided to support chancellor Maria Harper-Marinick, who made the decision after consulting with him and other board members. The announcement immediately provoked a community backlash.
Colleges across all levels have been disrupted by the threat of litigation, sowing chaos for insurers whose policies are spread across decades and involve hundreds of schools, conferences and governing bodies.
Over the past five years, well more than 100 individual lawsuits have been filed against the NCAA and its members seeking damages for traumatic brain injuries. Last June, the first trial involving football and CTE ended after three days. The NCAA abruptly settled with the widow of a former University of Texas linebacker and defensive tackle who was diagnosed with the disease after his death in 2015 -- 44 years after he last played.
Plaintiff attorneys predicted that the settlement would lead to more lawsuits. "That will bust open the floodgates, the NCAA settling midtrial," said Paul Anderson, a sports attorney in Kansas City, Missouri, who has been heavily involved in concussion litigation.
John Breckenridge, a former tight end at Sacramento State University and the CEO of SquarePeg Insurance Solutions, a new company that connects colleges and insurers, said he fears that a problem that began in the NFL has become "very threatening" to the entire sport.
"It's taken a while, but it's trickling down to each level of the game," he said. "I don't know that the general public really understands it. There's only so much that the liability market can take or will take."
Greg Amante, a producer in ESPN's Enterprise and Investigative Unit, Andrew Webber of the Northwestern University Pritzker School of Law, and Adam Conway of the University of California, Berkeley, School of Law contributed to this story.
