More than a decade ago, the NFL agreed to settle the concussion class action in order to, among other things, avoid litigation that would have resulted in plenty of problematic documents and testimony coming to light through the discovery process.
Discovery still happened, however, in a case involving whether the NFL was entitled to insurance coverage for the concussion settlement. Deposition testimony from that case recently was unsealed.
Daniel Kaplan of FrontOfficeSports.com has posted an article with quotes from some of the unsealed depositions, led by testimony from Commissioner Roger Goodell.
The case has placed the NFL in a tough spot. On one hand, it needs to show that there is enough of a link between football and head injuries to trigger insurance coverage. On the other hand, the NFL has been wired for decades to downplay the connection.
Consider this excerpt from Goodell’s deposition, via Kaplan:
Q. “As you sit here today, sir, do you know whether there is any medical consensus regarding whether concussions result in long-term damage to NFL players who sustain concussions while playing in the NFL?”
A. “I think there’s still a great deal of uncertainty about the causation issue, if that’s what you’re referring to.”
NFL general counsel Jeff Pash provided a different answer to the same question. “I think we’ve said that there can be long-term effects,” Pash said.
Goodell repeated his past explanation that there are risks to everything, including walking down the street. He also complained about media coverage of the issue as well: “They misstate, they misrepresent things, and when they do that, they add to a narrative that I think is unfair and unfounded.”
Goodell, who testified in July 2022, also got a taste of the risks associated with trying to engage in swordplay with lawyers. At one point, Goodell was asked this question: “Did you find it an issue of concern for the NFL that multiple NFL players committed suicide and left notes indicating that they wanted their brains studied, to determine whether their injuries resulted from their play in the NFL?”
Easy answer? “Yes.”
Goodell’s answer? “I’m not sure I would agree with that entire statement. I think players who want to participate in the research necessary to advance science is a positive thing for us. Obviously, the circumstances are incredibly unfortunate.”
That’s what happens when a witness strays from answering questions to trying to make arguments. Goodell opted to try to win the question, twisting the words to find a positive in something that carries no positives.
Having another brain to study is most definitely not a positive for the NFL, if the death was both untimely and self-inflicted. More broadly, it’s never positive for Goodell or any other executive to try to exert the same control over the situation that he controls over every other situation he encounters.
That’s why the NFL constantly tries to ensure that any legal claims against it will happen in arbitration controlled by the league. The fewer times the Commissioner and/or owners are put under oath and asked tough questions by lawyers, the better off the league will be.
