The Gray Lady is going to the mat in defense of its reporting on the National Football League. After writing an epic piece detailing flaws in the way the League collected and reported concussion data for years as well as ties between the NFL and the tobacco industry, the New York Times received a letter from a Biglaw firm demanding the story be retracted.
The NFL immediately responded to the piece; Politico Media details their efforts:
[NFL] Spokesman Joe Lockhart published a 2,500-word rebuttal on the league’s website, arguing that “the paper published pages of false innuendo and sheer speculation based on a mere handful of anecdotal and cursory references, twisted and contorted out of context, from a smattering of documents out of millions found on the tobacco litigation website.”
Additionally, the NFL ran ads on nytimes.com to promote the steps it says it has taken to advance player safety; at least one of the ads appeared in a banner placement directly above the concussions story. The NFL also paid to promote its rebuttal on Twitter.
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But the League was far from done. The NFL tapped Paul Weiss chair Brad S. Karp to do what Biglaw does best in these situations: write a threatening letter. The letter claims the Times article was “false and defamatory”:
Its sensational headline notwithstanding, the story did not show any meaningful “ties to the tobacco industry.” Nor did it present a shred of evidence to support its thesis that the NFL intentionally concealed concussion research data. 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.
And there is probably a hold notice circulating around the halls of the paper of record. In a move that will not shock fellow litigators, the NFL is reserving their rights against the Times:
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.
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Karp even boasts about his representation of the League on this issue in his Paul Weiss bio:
[Karp’s significant representations include] The National Football League in several matters, including its defense and recent settlement of hundreds of lawsuits filed by thousands of former NFL players seeking to hold the League liable for allegedly concealing the risks associated with concussions sustained while playing professional football, as well as its investigation of workplace issues at the Miami Dolphins;
I guess he, like the Academy of Motion Picture Arts and Sciences, was unmoved by Will Smith’s performance in Concussion.
In the face of the full power and might of the NFL and a Biglaw firm, the Times is holding fast (and should this turn into litigation, the paper will almost assuredly be repped by their own Biglaw shop). As Politico Media reports, there will be no correction or update to the Times’ story:
[I]n a Wednesday response to NFL attorney Brad Karp, Times assistant general counsel Dave McCraw wrote that, while the Times has a policy of promptly correcting factual errors, “nowhere does your letter identify any factual errors that we made in our reporting on the ties between the NFL and the tobacco industry.”
The Times letter, which was shared first with POLITICO after we reported Tuesday on the NFL’s retraction demand, also reiterated the article’s central assertion: That the NFL’s research on concussions sustained by pro football players “was deeply flawed and incomplete,” and that there were ties between the NFL and the tobacco industry.
Consider this an early salvo in the battle over NFL concussions. The issue is only likely to grow, as more information emerges and as science catches up with football practices.
N.F.L.’s Flawed Concussion Research and Ties to Tobacco Industry [New York Times]
NFL demands retraction of Times article on player concussions [Politico Media]
New York Times won’t retract or post a correction to NFL story [Politico Media]