Defenseless: Why NFL won't sue New York Times over concussion story

Don’t expect the debate between the NFL and the New York Times—or any other disagreement over a media portrayal of concussions in the NFL—to wind up in court.

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A March 24 New York Times report on the flaws in the NFL’s concussion research has sparked a contentious and public exchange between attorneys for the Times and the NFL over the story’s accuracy. Don’t expect their debate—or any other disagreement over a media portrayal of concussions in the NFL—to wind up in court, though. The main reason, as explained below, is simple: If the NFL sues a media company for libel, not only would the lawsuit face steep hurdles in order to prevail, but the league would open itself up to “pretrial discovery.” In this circumstance, pretrial discovery would consist of a judge ordering the league to disclose sensitive materials related to concussions. These materials could in turn damage the league’s public reputation, along with its standing among lawmakers interested in regulating football safety. The materials might also bolster the remaining concussion lawsuits brought by retired players and the families of deceased players. As a consequence, there’s very little the NFL can do about media allegations concerning concussions without accepting a major risk that extends well beyond time, energy and paying for attorneys.

The Times story and its fallout

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The much-discussed story, which was authored by Alan Schwarz, Walt Bogdanich and Jacqueline Williams, lobs serious accusations against the NFL. It intimates, although doesn’t outright say, that the league retained certain attorneys because of those attorneys’ familiarity with legal strategies engineered to defend tobacco companies. The story also accuses the NFL of using incomplete data in calculating the number and frequency of concussions suffered by NFL players. Although the story never expresses that the NFL set out to mislead the public about the risk of head trauma, it is difficult to read it without inferring such a conclusion.

The NFL responded quickly to publication of the story, which ran in print on March 25 under the headline “N.F.L. Concussion Studies Found to Have Deep Flaws.” NFL executive vice president Joe Lockhart, a former spokesperson for President Bill Clinton, posted a lengthy and severe critique on the league’s website. On behalf of the league, Lockhart insisted that the story was both false and misleading—an unusually bold accusation against a publication that some consider to be the “newspaper of record,” the gold standard of journalism. Lockhart’s condemnation prompted the Times to publish a rebuttal, which identified discrepancies between the NFL’s criticism of the story and what the story actually said.

The NFL escalated the conflict on March 28 when outside counsel Brad Karp, an attorney from the law firm Paul, Weiss, Rifkin, Wharton & Garrison (best known to NFL fans as Ted Wells’s law firm), sent a demand letter to two Times attorneys, Kenneth Richieri and David McCraw. Karp’s demand was unambiguous: retract the story or face a potential lawsuit. Accompanying Karp’s threat was a full-scale attack on the Times’ reporting. At different points in the letter, Karp describes the story as “reckless,” “dangerous,” “defamatory,” “false” and “misleading.”

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The NFL’s decision to retain an attorney to write a demand letter was significant because it is a common precursor to litigation. Should a lawsuit be filed, a judge assigned to hear the case normally wants to see if the plaintiff exhausted all reasonable opportunities to resolve the conflict before turning to the courts. A rejected demand letter thereby helps the plaintiff establish that it tried, albeit unsuccessfully, to resolve its dispute with the defendant before filing a lawsuit.

Karp’s letter identifies two main areas where the NFL could allege defamation. First, Karp contends that the Times engaged in a “Big Tobacco smear” to link the NFL to one of the most criticized industries in the United States. Karp insists that the purported link is “without a scintilla of evidence” and only serves to enrage readers.

To illustrate Karp’s assertion, consider how the Times story and Karp differ in their characterizations of attorney Dorothy Mitchell. The NFL hired Mitchell in 1995 away from the elite law firm Covington and Burling, where then-NFL commissioner Paul Tagliabue had previously practiced. At the time, Mitchell was in her fifth year as a licensed attorney, and, like most associates at large law firms, she worked on various client matters. A reader of the Times story could infer that Mitchell’s work on behalf of the Tobacco Institute, an industry trade group and Covington client, played an important role in the NFL hiring her. Consider these passages:

In 1997, to provide legal oversight for the [concussion] committee, the league assigned Dorothy C. Mitchell, a young lawyer who had earlier defended the Tobacco Institute . . . Before joining the N.F.L., Ms. Mitchell, a young Harvard Law School graduate, had been one of five lawyers at Covington & Burling who had provided either lobbying help or legal representation to both the N.F.L. and the tobacco industry, sometimes in the same year . . . In 1992, Ms. Mitchell defended the Tobacco Institute against a smoker’s lawsuit. She also worked on behalf of the institute in a landmark secondhand smoke case, as well as for other non-tobacco clients. Ms. Mitchell said she was not responsible for legal strategy in the tobacco cases.

In its rebuttal, the Times correctly stresses that at no time did the story express “how or why” Mitchell was hired. The NFL, however, maintains the “insinuation” is unmistakable, particularly given that much of the story is devoted to the NFL’s alleged ties to the tobacco industry. The story also repeatedly references Mitchell’s work on tobacco clients whenever her name is mentioned.

As a second area of attack, Karp’s letter spends considerable space on the Times’ statements that the NFL used “flawed” concussion data. These statements, Karp maintains, were allegations of intentional misconduct.

Whether the story portrays the NFL as “intentionally” committing fraud is debatable. The story clearly references how the NFL allegedly permitted omissions and errors in the data to go unchallenged. A failure to correct data is perhaps the equivalent of intentionally spreading false information. Then again, the latter comes off as more actively deceitful and could thus be viewed as worse. Regardless, Karp stresses that the Times has misled readers into believing that the NFL’s handling of concussion data is akin to how the tobacco industry cast doubt on links between cigarettes and cancer. To bolster that point, Karp notes that the limitations of the NFL’s data were not at all hidden. Instead, they were “repeatedly and expressly disclosed in the studies themselves”—a point Karp contends the Times should have mentioned.

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​Karp’s letter also outlines why the NFL believes the Times has “defamed and substantially damaged the NFL and its reputation.” The discussion of damages is important because it serves as a threat to the Times: if the NFL sues, the league would demand massive damages. Karp points out that reader comments accompanying the online version of the Times story help to illuminate the extent of damages. “Just read any of the hundreds of comments the story has generated,” Karp writes, “almost all of them expressing disgust at the NFL for ‘the ties between the health-destroying greedy tobacco industry and football,’ as one reader put it.”

Karp also implies the Times was aware of the damage it may have caused the NFL by using a different headline for the print version of the story from the online version. This point isn’t terribly persuasive, however, since online and print stories often use different headlines, in part motivated by greater constraints for headlines in print.

The Times isn't worried about a lawsuit—and for good reason

Karp’s letter serves as a threat that if the Times doesn’t retract the story, the NFL could file a libel lawsuit. The last paragraph of Karp’s letter makes this clear where he calls the story “false and defamatory,” demands “immediate retraction” and warns the Times that NFL “broadly reserve all of the League's rights and remedies.”

The “rights and remedies” phrase unsubtly refers to the ability of the NFL to file a libel lawsuit against the Times. In a libel lawsuit, which would most likely be filed in New York, the league would insist that the Times knowingly published false statements about the NFL and that those false statements caused the league reputational harm. Under New York law, the NFL has one year from the date of publication—so until March 24, 2017—to file a lawsuit.

It doesn’t appear the Times is too worried about this possibility.

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First, McCraw—one of the Times’ attorneys—wrote a letter back to Karp on Mar. 30 in which McCraw rejects Karp’s accusations and demands out-of-hand. McCraw argues that Karp fails to identify “any factual error” in the reporting. Further, McCraw emphasizes that any perceived links between the NFL and the tobacco industry are matters of “opinion” in the story and at no time are portrayed as facts. McCraw’s reference to statements of opinion is important because a libel lawsuit will fail if a court deems disputed statements to constitute representations of opinion, rather than representations of fact. McCraw also mocks Karp on the topic of concussion studies, noting “if the NFL has previously acknowledged the undercounting of diagnosed concussions, your letter fails to identify such public declaration.”

Second, the Times is surely aware of the U.S. Supreme Court’s ruling in a case involving the Times 52 years ago. In New York Times v. Sullivan, the Supreme Court reasoned that in order for public officials—interpreted to include other public figures, including private persons in the news—to successfully prove that a media company defamed them, it must be shown that the media company acted with “actual malice,” or reckless disregard for the truth. The NFL and its officials would likely be considered public figures, meaning they would need to establish both that the Times misreported facts and did so either intentionally or knowingly. Actual malice is typically a difficult standard for plaintiffs to meet in a libel lawsuit.

Third, and perhaps most crucially, if the NFL sues the Times and the case advances past a motion to dismiss, a judge would order pretrial discovery. In this instance, pretrial discovery would require both the Times and NFL to share with the other the information that led them to reach such starkly different conclusions.

For the NFL, sharing information about concussion data could represent a massive risk. For one, the concussion class action litigation between the NFL, retired players and families is neither definitively settled nor does it include everyone who could sue the NFL over concussions. As I explain my story “Shield Law” in this week’s issue of SI, the settlement—which U.S. District Judge Anita Brody approved in April 2015—is currently under review by the U.S. Court of Appeals for the Third Circuit. Also, around 200 retired players opted out of the settlement and can pursue their own cases against the NFL. The league hopes the Third Circuit affirms the settlement and that none of the remaining cases advances. Indeed, one of the key reasons the NFL reached a settlement was to avoid pretrial discovery.

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In addition, the league is likely worried that Congress might at some point consider football safety legislation (and that federal agencies might contemplate regulation) that impacts the way the NFL does business. The fact that Jeffrey Miller, the NFL’s senior vice president for health and safety policy, recently appeared before a congressional roundtable discussion on concussions goes to this point. Further, disclosures about concussions and what league officials knew years ago could prove damaging from a public relations standpoint. The NFL need look no further than to what pretrial discovery has uncovered in concussion litigation brought by retired NHL players against their league: several NHL officials have seen their reputations tarnished by emails obtained through discovery.

With these points in mind, the NFL’s best defense against media stories about concussions is not to threaten to sue the media companies that put them out. Those threats will fall on deaf ears.

Michael McCann is a legal analyst and writer for Sports Illustrated. He is also a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He also created and teaches the Deflategate undergraduate course at UNH, serves as the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law and is on the faculty of the Oregon Law Summer Sports Institute.