Memo to NFL owners from Lockhart and Pash

Chief Executives
Club Presidents

From: Joe Lockhart
Jeffrey Pash

Date: March 24, 2016

Subject: Today’s New York Times Article Regarding Concussions

This morning's New York Times published a piece that was sharply critical of concussion-related research conducted almost two decades ago. The piece also purported to identify "a long relationship between the NFL and the tobacco industry" in a transparent effort to cast the league in a bad light.

The piece offers very little that is new concerning this long-ago research and reflects little more than the pre-determined views of its authors. When the Times contacted us about the piece, we provided extraordinary amounts of information that conclusively refuted every aspec‎t of the story. All of that material has been made public.

We also had outside counsel contact the Times by letter to underscore our concern about the fairness and accuracy of the piece.

With respect to the research, there are three key points:

First, as even the Times acknowledged, the research forms no part of the current work of the Head, Neck & Spine Committee. That committee resolved to set aside the prior work and start fresh.

Second, the Times does not identify a single policy that is based solely on that work. All of the current policies relating to player medical care and the treatment of concussions have been carefully developed in conjunction with independent experts on our medical committees, the NFLPA, and leading bodies such as the CDC.

Third, the research papers themselves make clear that not all concussions were included in the data set. While the point made in the article could hav‎e been more clearly stated in the papers themselves, there is no question that all clubs reported data, although not every club reported data for every season.

Although the Times was forced to concede that it 'has found no direct evidence that the league took its strategy from Big Tobacco,' it then proceeds to ladle speculation atop conjecture trying to build a case where -- by its own admission -- none exists. For example, the Times points to an unsolicited letter from a tobacco lawyer to Commissioner Tagliabue identifying two published federal court decisions, without stating -- as the Times knows -- that neither Commissioner Tagliabue nor our counsel responded to the letter or took any action as a result.

The story includes a dark reference to the NFL’s hiring of an unnamed "company whose client list included the Tobacco Institute to study player injuries." That company -- the Stanford Research Institute -- did player safety studies for both the NFL and NFLPA in the 1970s, and has a blue-chip client list that includes various agencies in the federal government, including the Department of Commerce and Department of Defense, the Bill and Melinda Gates Foundation and the Alzheimer’s Association. The Times of course offers nothing to suggest that the work done by SRI was in any way compromised by anything it did for the tobacco industry or that the NFL sought to work with SRI for that reason.

Most outrageous is the attempted smear of Dorothy Mitchell, who worked here as a member of our legal staff for five years in the 1990s. Before joining our office, Ms. Mitchell was an associate at Covington & Burling, where, among a wide range of other matters, she worked on a piece of litigation for the Tobacco Institute. Her work on tobacco issues was unknown to the people who hired her at the NFL as well as to members of the MTBI Committee. Although a talented and diligent lawyer, she was a junior associate and performed the kinds of tasks typical of junior associates at large law firms. The Times' statement that Ms. Mitchell "defended the Tobacco Institute" is an extraordinary and deliberate overstatement of her involvement in that lawsuit.

We will continue to press both the Times and other media outlets to print facts, not innuendo and speculation. Today's piece, unfortunately, is very much on the latter side of that line.

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