Saturday, April 2, 2016

The NYT Sacks the NFL

Anyone who reads this blog or follows me on Twitter knows I'm a huge sports fan. I've written before about Jimmy Graham's dispute with the Saints over the franchise tag, the rhetoric of Deflategate, and sports metaphors in judicial opinions.

David McCraw
And I also love a good lawyer letter. Now this week two of my loves meet in a letter from David McCraw, VP and General Counsel of the New York Times, to the NFL.

By way of background, CTE (chronic traumatic encephalopathy) is a brain disease that can lead to memory loss, impaired judgment, depression, and dementia. Research shows there is some link between repeated head trauma (of the type that occurs every day in the NFL) and CTE, though additional research is certainly needed to determine the extent and nature of that link. 

The NFL has known about CTE for a while. But last month's comments by Jeff Miller, the NFL's senior VP for health and safety, before the U.S. House of Representatives' Committee on Energy and Commerce appear to be the NFL's first public admission of a link between head trauma and CTE. Even after that admission, however, some NFL owners, executives, and coaches have continued to deny the connection, coming off just like climate change deniers and, before them, folks in big tobacco.

Enter the NYT which, a couple of weeks ago, published what I'll call an "unflattering" piece on NFL-funded studies on CTE. According to the article, the studies funded by the NFL were based on incomplete data, included incorrect data, and were performed by researchers who were in the NFL's pocket. The article also explored the connection between the NFL and the tobacco industry.

Understandably, the NFL was none too pleased by the piece. So it wrote a sternly worded letter to the NYT asking that it retract the story. As Deadspin noted when the NFL letter became public, the NFL's argument for retraction wasn't very strong. 

Like a good NFL defense, the NYT's David McCraw spared no mercy in responding to the retraction request. In his response letter to the NFL, McCraw first outlined the NYT's policy of correcting factual errors promptly (the "law," if you will) before noting that the NFL did not allege that the NYT story contained any factual errors about the connection between the NFL and the tobacco companies (i.e., the "law" does not apply). McCraw summarized the NFL's real gripe--that the article's connections between the two industries weren't "meaningful"--then pointed out that whether something is "meaningful" is clearly a question of opinion, not fact (more explanation of why the "law" doesn't apply).   

But McCraw didn't stop there. He went further, hitting the NFL where it hurts in noting that the NFL omitted from its letter any request for retraction of one "essential" documented connection between the NFL and tobacco companies--Preston R. Tisch, who served both as co-owner of the New York Giants and as co-owner of Lorillard (highlighting the NFL's omission of key facts).

McCraw even included the often-elusive public policy argument, pointing out that after the NYT published the story, discussion about CTE, the NFL, and its connection to tobacco companies increased substantially. By demanding a retraction, said McCraw, the NFL was attempting to "silence the public debate with legal threats...[doing] a disservice to its fans and, more generally, to the American people."

McCraw then moved on to the NFL's other issue with the NYT story--its discussion of the CTE studies--and explained why the NYT's retraction policy was inapplicable to that complaint as well:

The [NFL] letter bizarrely quibbles not over whether the research was valid (we all agree that it was not) or whether the NFL defended the research for years (we all agree it did) but whether the NFL has continued to "stand by" the research. If the NFL has previously acknowledged the undercounting of diagnosed concussions, your letter fails to identify any such public declaration.

Then, McCraw ended the letter rather abruptly. Most lawyer letters end with some conclusion, however brief:

--Thank you for your attention to this letter.
--Govern yourself accordingly.
--Please give me a call to discuss this case further.

Not McCraw's. In what would normally be an odd way to organize his response, McCraw concluded the letter by returning to the NFL's gripe about the comparison of the NFL to the tobacco industry. He did this for one clear purpose: the proverbial mic drop (as the kids these days say), which couldn't be better and which wouldn't have had nearly the impact earlier in the response. 

Unfortunately for the NFL, there is actually another interesting link between it and big tobacco, and McCraw did his homework in uncovering it:

While your earlier letter to the Times called the tobacco industry "perhaps [the] most odious industry in American history," you somehow fail to mention in either letter that it was your firm that represented Phillip Morris....

Oof. Perhaps the NFL should come at the NYT with a better offense the next time.

What do you think of McCraw's letter? Did the NFL deserve such a smack-down? Or would a lighter touch have been more appropriate? 

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