Compared to lung cancer, brain damage, dementia and suicide, taking the air out of footballs is decidedly small potatoes.
But the same lawyers, law firms and perhaps strategies employed in efforts to prove tobacco wasn’t bad and concussions couldn’t be linked to football were used by the NFL in its quest to prove Tom Brady ran a deflation scheme.
Thursday’s bombshell story in the New York Times declared the league omitted “more than 100” diagnosed concussions from a study it performed from 1996 through 2001. From the story written by Alan Schwarz, Walt Bogdanich and Jacqueline Williams:
“For the last 13 years, the N.F.L. has stood by the research, which, the papers stated, was based on a full accounting of all concussions diagnosed by team physicians from 1996 through 2001. But confidential data obtained by The Times shows that more than 100 diagnosed concussions were omitted from the studies — including some severe injuries to stars like quarterbacks Steve Young and Troy Aikman. The committee then calculated the rates of concussions using the incomplete data, making them appear less frequent than they actually were.
After The Times asked the league about the missing diagnosed cases — more than 10 percent of the total — officials acknowledged that “the clubs were not required to submit their data and not every club did.” That should have been made clearer, the league said in a statement, adding that the missing cases were not part of an attempt “to alter or suppress the rate of concussions.”
One member of the concussion committee, Dr. Joseph Waeckerle, said he was unaware of the omissions. But he added: “If somebody made a human error or somebody assumed the data was absolutely correct and didn’t question it, well, we screwed up. If we found it wasn’t accurate and still used it, that’s not a screw-up; that’s a lie.”
Think about that a moment just in the context of what we’ve been watching the past 15 months. There is no denying the NFL found that the data it collected the night of the AFC Championship Game was practically worthless. They didn’t collect it in a controlled setting, they used shoddy equipment, they didn’t account for climate changes, and the 2015 season proved that footballs routinely dipped well below 12.5 PSI.
The company the NFL brought in to “prove” the data supported a scheme -- Exponent -- was summarily exposed as having provided the league with junk science that fit the data to the NFL’s mission.
“If we found it wasn’t accurate and still used it, that’s not a screw up; that’s a lie.”
The NFL wasted no time Thursday crafting a response. This link takes you there. (And the New York Times crafted a response to the respose; this link takes you a roundup of those Tweets in which the newspaper answers the league's charges.) But after reading the response, the inarguable facts of the Times article and the ones I’ll detail in this story stand.
Now, for following the chain linking Deflategate back to Big Tobacco.
The story notes that,
“Concussions can hardly be equated with smoking, which kills 1,300 people a day in the United States, and The Times has found no direct evidence that the league took its strategy from Big Tobacco. But records show a long relationship between two businesses with little in common beyond the health risks associated with their products.
In a letter to The Times, a lawyer for the league said, “The N.F.L. is not the tobacco industry; it had no connection to the tobacco industry,” which he called “perhaps the most odious industry in American history.”
Still, the records show that the two businesses shared lobbyists, lawyers and consultants. Personal correspondence underscored their friendships, including dinner invitations and a request for lobbying advice.”
The most recognizable name is Ted Wells. The man who ran the Deflategate investigation defended tobacco company Philip Morris in a $60 billion case back in 2005. Exponent -- the firm Wells turned to -- once claimed its studies found second-hand smoke does not cause cancer. The research firm has legions of detractors questioning its scientific work in defending some of the world’s biggest and most profitable companies.
Wells works for the law firm Paul, Weiss as does Lorin Reisner, a central figure in the Wells Investigation and Tom Brady’s June appeal.
But the legal, personnel and strategic ties between Big Tobacco, the NFL’s concussion cases and Deflategate extend past Wells, Exponent and Paul, Weiss.
Legal oversight for the concussion study was given by Dorothy Mitchell from the law firm Covington, Burling. She previously “defended the Tobacco Institute, the industry trade group” according to The Times. Covington, Burling, based in Washington, D.C., has been the longtime legal pipeline to the NFL. It employs former NFL commissioner Paul Tagliabue, NFL lead counsel Jeff Pash and attorney Gregg Levy, who was brought into Deflategate during Brady’s appeal and was runner-up for the commissioner job in 2006.
We all understand that large companies facing massive litigation with damages that could run into the billions aren’t going to hire Matlock to defend them. The pool of firms equipped to fight plaintiffs claiming they were injured or killed by using a product or participating in a sport is going to be shallow.
The point isn’t as much the law firms, though, as it is the similar strategies used, as the Times points out: “Some retired players have likened the N.F.L.’s handling of its health crisis to that of the tobacco industry, which was notorious for using questionable science to play down the dangers of cigarettes.”
Speaking to the Times about the misleading concussion data, Bill Barr, a neuropsychologist who once worked for the Jets said, “One of the rules of science is that you need to have impeccable data collection procedures. … (By excluding so many concussions,) you’re not doing science here; you are putting forth some idea that you already have.”
Sounds all too familiar.