The NFL continues to mount an aggressive response to last week’s controversial New York Times article alleging incomplete concussion research and touting ties between pro football and Big Tobacco. And the strategy is taking on a more official and ominous feel.
Last week, the league issued a pair of statements with specific responses to the various allegations made in the Times story. On Monday, the league specifically demanded an “immediate retraction” of the story, on the basis that it was “false and defamatory.”
The letter, signed by Brad S. Karp of Paul, Weiss, Rifkind, Wharton & Garrison (a/k/a the Ted Wells firm), explains that the league provided “extensive evidence” to the Times reporters prior to publication of the story, accuses the Times of using a “sensational headline” tying the NFL to the tobacco industry without sufficient evidence to merit the link, and explains that the Times “recklessly disregarded the truth and defamed the NFL.”
The letter directs the Times to preserve all notes, correspondence, emails, recordings, work papers, and other related documents, a clear indication that the NFL is at least considering the possibility of suing.
The six-page letter addresses the league’s specific concerns about the story, starting with the alleged sleight-of-hand effort to tie the NFL to the tobacco industry while still pointing out that there was no “direct evidence” that the league obtained any of its strategies from the tobacco industry. The leage also points out that the Times rewrote the digital headline for the print edition to delete any reference to the alleged tobacco link and accuses the Times of “reckless and dangerous” tactics.
“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,” Karp contends, pointing out that a search of the 14 million documents from tobacco litigation archives revealed “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.”
For instance, the league found: (1) “interlocking board memberships between the Times and Philip Morris"; (2) “Times directors who had been partners at law firms that defended tobacco companies"; (3) “Times directors who were connected with research firms that did studies for Big Tobacco"; (4) “a fundraising letter to the Tobacco Institute asking for the purchase of a $25,000 table at an event chaired by the Times publisher"; and (5) “over one hundred million dollars in tobacco advertising the Times accepted long after the Surgeon General first warned of the link between smoking and premature death.”
The letter also challenges the contention that the NFL deliberately concealed concussion data from 1996 through 2001. The league’s biggest concern arises from the suggestion that the flawed concussion research was engineered in a way that was “parallel to tobacco research,” and from the failure of the Times to point out that it was “repeatedly and expressly disclosed in the studies themselves” that they were not based on a complete count of concussions. The league claims that the concealment of those facts creates the impression that the Times “had uncovered a secret and nefarious plot by the League to suppress relevant data and manipulate the test results, in a manner learned through the League’s ‘ties’ to Big Tobacco.”
Whether the NFL actually sues the Times is a separate issue. Even with a retraction, the league could sue for damage already allegedly done. The letter makes it clear that a lawsuit could indeed be coming, regardless of what the Times does next.