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'NOI ADMIl I L U IO IHL NLW YniUs DAK

Kenneth A. Richieri, Esq.


General Counsel
David E. McCraw, Esq.
Vice President & Assistant General Counsel
The New York Times Company
620 8th Avenue
New York, NY 10018
"N.F.L. 's Flawed Concussion Research and Ties to the Tobacco Industry"
Dear Ken and David:
On behalf of the National Football League ("NFL" or "League"), and
following up on our letter to you dated March 20, 2016, we write concerning the Times''s
March 24 lead digital story, "N.F.L.'s Flawed Concussion Research and Ties to the
Tobacco Industry" (published as the lead story on page Al of the Times'?, March 25 print
edition). The extensive evidence we provided to your reporters pre-publication
conclusively demonstrated the falsity of both the thesis and every material aspect of this
story.
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

PAUL, W K I S S , R I l - K I N U , W H A R T O N & G A R R I S O N LLP

Kenneth A. Richieri, Esq.


David E. McCraw, Esq.
recklessly disregarded the truth and defamed the NFL, even under the public-figure
Sullivan test.
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.
We catalog below our specific grievances.
The Story Does Not Establish Any Meaningful "Ties to the Tobacco Industry,"
Despite the Story's False and Incendiary Headline
Let us first address, in the words of the story's original digital headline,
the NFL's alleged "Ties to the Tobacco Industry." The Times fully understood and
appreciated the explosive nature of this charge, as evidenced by the story's prominent
placement on the Times's landing page shortly after 6 a.m. on March 24 and the Times's
constant promotion of the article that day through news alerts, email alerts and social and
digital channels. If that were not enough, the Times then gave the story front-page,
above-the-fold placement in the March 25 print edition, relegating coverage of the
Brussels terrorist attack and the presidential race to below the fold.
Trumpeting a connection between the NFL and the tobacco industry
should require substantial, concrete evidence. In fact, the Times conceded that it found
"no direct evidence that the League took its strategy from Big Tobacco." Nevertheless,
the story deliberately and falsely asserted, through innuendo and a small handful of
transparently meaningless "connections," that the NFL soughtthrough its supposed
"ties" to Big Tobaccoto replicate Big Tobacco's strategy in addressing the health risks
related to concussions.
What evidence did your reporters cite to establish the League's supposed
"ties" with Big Tobacco? A grand total of five pieces of circumstantial evidence, none of
whichtaken together or individuallycomes close to establishing any meaningful "tie"
that reasonably can form the basis of the Times's knowingly false and incendiary charge.
Specifically, the story cites a single letter, written almost a quarter of a
century ago, from the general counsel of Lorillard to the NFL's outside counsel at
Skadden Arps, who was then handling a labor litigation for the League, and thenCommissioner Paul Tagliabue (also a lawyer). The letter attached and referred to two
legal decisions involving a purely procedural issue: The disqualification of a federal
judge for bias. The graphical display surrounding the Times's article, both online and in
the print edition, dishonestly crops the letter to make it appear as if it was sent only to
Commissioner Tagliabue, hiding completely that the letter's first addressee was its labor

P A U L , W L I S S , R I J - ' K I N D . W H A R T t ^ N <Sf C i A R R l S C ^ N

LLP

Kenneth A. Richieri, Esq.


David E. McCraw, Esq.
counsel at Skadden. The manipulative cropping also prevents the reader from seeing that
the letter itself was merely about whether the briefs and record in a case were publicly
available - and nothing more. Moreover, as the NFL and Skadden Arps told the Times
reporters in advance of publication, Commissioner Tagliabue did not know Mr. Stevens
and does not recall communicating with him prior to or after the letter, and there is no
evidence that anyone at the League or at Skadden solicited, reviewed, responded to or
acted upon anything in the letter.
There can be no question that the misleading graphic and the reference to
this innocuous letter were intended to support the Times's false narrative that the tobacco
industry was sharing its secret thoughts with the NFL Commissioner about how to
replicate in the concussion arena the tobacco industry "cover up" of the links between
smoking and cancerwhen, in fact, the letter does nothing of the kind and the story itself
disclaims finding any "direct evidence" of such a link.
The other supposed support for the false headline asserting "ties" to the
tobacco industry is limited to the following "evidence": (1) that the League hired a junior
litigation associate from its long-time outside law firm, who, among a wide range of other
matters, had worked on a piece of litigation for the Tobacco Institutea fact unknown to
the people who hired her; (2) that the League hired an unnamed "company" whose client
list included the tobacco industry (the Times did not disclose, but its reporters knew, that
the "company" in question was the Stanford Research Institute, a prestigious research
organization with a long list of blue chip corporate, government and charitable
foundation clients); (3) that an NFL employee had a long friendship with someone who,
years after they met, went to work for the Tobacco Institute; and (4) that an NFL
executive previously worked for an advertising agency that worked with tobacco
company clients, among many other clients.
That, literally, is the entire "evidentiary" support for the Times''s false and
defamatory charge of "ties" between Big Tobacco and the NFL.
The Times''s intent was obvious: It sought to publicly associate the NFL
with the tobacco industry and all that implies, in a "front-page" story, no lesswithout a
scintilla of evidence to support such a link. And there is no doubt that the Times achieved
its purpose and defamed and substantially damaged the NFL and its reputation. Just read
any of the hundreds of comments the story has generated, 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. The damage to the League caused by the Times story
is manifest and continuing.
Tellingly, aware that there was no evidencedirect or otherwise
supporting its assertion of NFL ties to the tobacco industry, the Times rewrote its digital
headline for the next day's print edition to delete any such reference. That change
leaving the story otherwise intactcame far too late, as public consumption of the

PAUL, W L I S S , R L I ' K I N n , W H A R T O N & G A R R I S O N

Kenneth A. Richieri, Esq.


David E. McCraw, Esq.
Times's electronic story had already spread far and wide, and grave damage to the NFL's
reputation had already been done. Moreover, the false and defamatory digital story
headline remains on the Times's website. Every piece of information in the NFL's
rebuttal to the electronic version was provided to the reporters before the story was
published in any form. Simply put, the Times knew any claim of a connection between
the NFL and tobaccoin a headline or elsewherewas false. But the Times and its
reportersincluding Mr. Bogdanich, whose false and misleading reporting concerning
the tobacco industry, as you know, forced ABC News to settle a lawsuit and publicly
apologize and broadcast that apologychose to publish the story anyway with the
knowledge that it was false and with the clear intent to injure the NFL.
Tossing around unsubstantiated allegations of links between an industry
and Big Tobacco is reckless and dangerous. Like all broad-brush attacks, it undermines
reasoned, fact-based debate. The Big Tobacco smear is especially pernicious and unfair
because the truth is that there are few institutions in American life that do not have some
intersection with the tobacco industry at some point, however devoid of meaning. And
the Times itself should be well aware of this reality.
Let us offer an example: The NFL did a search of the fourteen million
documents from the Tobacco Litigation archives available to the public (we believe this
was the same methodology used by the Times in its NFL reporting) and found significant
"connections" between the Times and the tobacco industryconnections far more
concrete than the phantom connections contrived by the Times purporting to "tie" the
NFL to the tobacco industry.
Among other connections, the NFL found interlocking board memberships
between the Times and Philip Morris; Times directors who had been partners at law firms
that defended tobacco companies; Times directors who were connected with research
firms that did studies for Big Tobacco; and a fundraising letter to the Tobacco Institute
asking for the purchase of a $25,000 table at an event chaired by the Times publisher.
And that does not include the over one hundred million dollars in tobacco advertising the
Times accepted long after the Surgeon General first warned of the link between smoking
and premature death. The NFL also is aware of a highly respected Washington
consultant who has done extensive work for the tobacco industry, the NFL, and the
Times.
Would any fair-minded, objective, responsible journalist contend that
these "connections" establish a meaningful "tie" between these corporate entities
sufficient to support the lead front-page story in the Times'?
In short, there is nothing in the Times's story that can fairly, credibly and
objectively support the false and defamatory charge that the NFL had ties to the tobacco
industry.

PAUL, W L I S S , R I L K I N D , W H A R T O N & G A R R I S O N LLP

Kenneth A. Richieri, Esq.


David E. McCraw, Esq.
The Story Does Not Establish Any Intent of the NFL to Intentionally Conceal
Concussion Data
The other charge in the Times story is that the NFL deliberately relied on
"flawed" concussion data and intentionally concealed and manipulated the actual
concussion data. The reporters' thesis is that not all of the concussions that occurred in
the NFL during the time period covered by a series of research studies supported by the
League were included in the data on which these studies were based. This, asserts the
Times, "raises new questions about the validity" of the studies and supposedly supports
the charge that "the N.F.L's concussion research was far more flawed than previously
known." By linking these studies with the research of the tobacco industry that was
"notorious for using questionable science to play down the dangers of cigarettes," the
Times story accuses the NFL of omitting data in a manner "parallel to tobacco research,"
according to the Times revised print headline.
The story is false and defamatory on this point as well. There is not a
single fact in the Times article that supports the allegation that the NFL intentionally
concealed concussion data in a manner "parallel to tobacco research," as the revised
Times print headline asserts. To the contrary, the fact that the studies relied on a data set
that was not a complete count of all concussions in the NFLthe central factual assertion
in the storywas repeatedly and expressly disclosed in the studies themselves and
counting all concussions was not the purpose of the studies in any event. Nor does the
story explain why the allegedly "omitted" data were necessarily significant to the purpose
of the studies or their results.
By concealing these actual facts from your readers, the story falsely
implies that the Times had uncovered a secret and nefarious plot by the League to
suppress relevant data and manipulate the test results, in a manner learned through the
League's "ties" to Big Tobacco, where there is in fact no such evidence to support this
false and defamatory charge.
Not only that, but the story falsely claims that "[f]or the last 13 years, the
N.F.L. has stood by the research." Your reporters never asked the NFL whether that is
true. In fact, as your reporters were well aware based on their prior reporting on this very
topic, the League resolved years ago to set aside the prior work of the committee that
authored these studies and to start fresh, and none of the League's current policies is
based on this research (and the story identifies none). The research that is the focus of
the Times story forms no part of the current work of the League's Head, Neck and Spine
Committee, another central fact that your reporters knew^particularly since Alan
Schwarz, one of the lead reporters for this story, actually published an article about it in
the Times on June 10, 2010.

PAUL, W L I S S , R I L K I N D , W H A R T O N & G A R R I S O N LLP

Kenneth A. Richieri, Esq.


David E. McCraw, Esq.
Like the "Big Tobacco" charge, the thesis that the NFL manipulated
concussion data to skew research on which the League continues to rely is false and
defamatory and not supported by the facts set forth in the story.

For the reasons set forth above, the Times's March 24 story (republished
in the March 25 print edition) was false and defamatory, and we demand its immediate
retraction in all Times digital and print media. We more broadly reserve all of the
League's rights and remedies.
We await your prompt response.

Sincerel

Brad S. Karp

cc:

Jeffrey Pash, Esq. (by email only)

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