NFL Demands New York Times Retract Concussion Story, Hints At Possible Lawsuit
By Michael Hurley, CBS Boston
BOSTON (CBS) -- The NFL issued two lengthy statements last week in an effort to rebut the New York Times' article about flawed concussion data gathering from 1996-2001. The NFL also bought advertisements to appear on the Times' website in order to tell their side of the story.
Alas, that is not enough. Now the NFL wants a full retraction from The New York Times.
Politico's Joe Pompeo obtained a letter from an NFL lawyer (Brad Karp) to the Times, demanding a retraction and seemingly toeing the line of threatening legal action.
"The extensive evidence we provided to your reporters pre-publication conclusively demonstrated the falsity of both the thesis and every material aspect of this story," Karp wrote to the Times on behalf of the NFL. "By publishing the story, fully aware of the falsity of the underlying facts, the Times recklessly disregarded the truth and defamed the NFL, even under the public-figure Sullivan test."
That Sullivan test is a reference to The New York Times v. Sullivan, a case that established the need for "actual malice" to be present in a defamation or libel suit filed by a public figure.
The letter went on: "Accordingly, we demand that the story immediately be retracted, and we reserve our rights more broadly. We also request that the Times's reporters and editors who worked on this story preserve their notes, correspondence, emails, recordings and work papers and all other electronic and hard copy documents generated or received in connection with their work."
Oh, boy.
It's not entirely surprising to see the NFL feel entitled to seeing and reading all of the communications between people whose emails the league has no right to see. That is how the NFL essentially indicted Richie Incognito and Tom Brady, and lo and behold, Karp shares a place of employment with Ted Wells at Paul, Weiss.
It is interesting to see the NFL protest so loudly and profoundly to the feeling of being defamed by false information, considering that's been exactly the modus operandi employed by commissioner Roger Goodell in the cases of Brady and Ray Rice. Though, perhaps the honchos at the NFL being so familiar with such a tactic makes them ultra-aware of being wronged in such a fashion.
Of course, a Pulitzer winner and a Pulitzer finalist reported on the story in question, and The New York Times has already responded to the NFL's "rebuttals," noting that many of the NFL's claims were never even in the Times story to begin with. And based on the newspaper's statement to Politico, it doesn't sound like a retraction is on the horizon.
"Our reporting showed that more than 100 such concussions — including some sustained by star players — were not included in the [NFL's] data set, resulting in inaccurate findings," sports editor Jason Stallman told Politico. "The NFL and the tobacco industry shared lobbyists, lawyers and consultants."
The NFL's letter focused mostly on the alleged "ties" to Big Tobacco, a connection with the NFL vehemently denies. In fact, the NFL went so far as to create a connection between the Times and Big Tobacco.
"The Big Tobacco smear is especially pernicious and unfair because the truth is that there are few institutions in American life that do not have some intersection with the tobacco industry at some point, however devoid of meaning. And the Times itself should be well aware of this reality," Karp wrote. "Let us offer an example: The NFL did a search of the fourteen million documents from the Tobacco Litigation archives available to the public (we believe this was the same methodology used by the Times in its NFL reporting) and found significant 'connections' between the Times and the tobacco industry -- connections far more concrete than the phantom connections contrived by the Times purporting to 'tie' the NFL to the tobacco industry."
The letter also claimed the Times' reporting of the NFL relying on flawed and incomplete data was "false and defamatory."
The news comes amid a blitz of PR effort from the league and its owners against the significance of concussions in football. Cowboys owner Jerry Jones said last week that it would be "absurd" to connect playing football to developing CTE from repeated head trauma. Colts owner Jim Irsay likewise said it would be "absurd" to tie the deaths and suicides of former players to brain trauma they suffered during their playing days. Both owners, perhaps revealing a bit of PR strategy that was developed behind closed doors, referenced the developed thoughts on aspirin over the years.
It's a strategy that's either intentionally obtuse or simply the result of having uneducated people with vested interests in football speak on a particular topic.
Really, not even the staunchest denier of concussion impacts and CTE could state that the NFL properly handled and addressed head injuries in the 1990s. Back then, nobody was treating concussions with the proper level of care and sensitivity, mostly because so little research had been done and so much information remained unknown.
So, if the NFL were to be frank and honest, the league would simply admit to not properly handling concussions from 1996-2001, vow that the league has improved since that time, and move on.
Alas, the recent comments from NFL senior VP of player health and safety that there is certainly a link between playing football and developing CTE have opened up the league to a vulnerability to former players who opted out of the class-action settlement. Those players immediately moved to add the admission into consideration, and the NFL quickly acted to say that the admission was not an admission and that everything should just proceed as if it never happened.
So, in this instance, the NFL cannot admit to any fault regarding concussion treatment from 1996-2001, for fear of having to give money to the men who suffered life-altering, debilitating injuries on NFL fields. Instead, the NFL is giving that money to lawyers so that they can threaten legal actions against The New York Times.
You can email Michael Hurley or find him on Twitter @michaelFhurley.