The National Football League faces an oncoming spate of lawsuits by former players over traumatic brain injuries. Class-action suits filed in several states have already been consolidated to a federal court in Philadelphia and more suits by former players suits are certain to follow. Meanwhile, the recent revelation that teams unofficially paid bounties to defensive players, offering large sums of money for “cartoff” and “knockout” injuries that removed opponents from games comes at a bad time, suggesting the NFL has condoned deliberate violence and downplayed the long-term consequences.
Professional football will soon find itself in a similar legal situation to that which confronted the country’s most vilified industry two decades ago. Big Tobacco, traditional corporate villains in the public mind, manufactured products contributing annually to thousands of deaths, yet cigarettes are legal and enjoyed by millions. Football, despite its violence, is America’s most popular sport; the Super Bowl remains the standard other sporting events are measured against. Like the tobacco industry, football sells a product demonized as causing public harm that millions nevertheless enjoy.
The crucible, then and now, is the courtroom. In 1994, individual states filed lawsuits against Big Tobacco seeking recovery of billions of dollars in health care costs amassed by smokers over decades. Many skeptics doubted the tobacco industry would survive the legal onslaught and predicted its demise. However, reports of Big Tobacco’s death were greatly exaggerated. After the legal dust finally settled on tobacco lawsuits, the industry remains quite profitable. 20% of adults still smoke and Philip Morris, the largest tobacco stock, performed well even during the recent recession. The epitaph for Big Tobacco is on hold.
How did Big Tobacco survive its existential legal threat and what can the NFL learn? It employed at least three key strategies the NFL should adopt:
1. End the pattern of denial. Acknowledge the truth. Since cigarettes were first mass-produced in the early 20th Century, the public has realized the dangers of “coffin nails” and “cancer sticks”. Yet before the tobacco lawsuits, the industry deliberately downplayed the dangers, contending there was no scientific proof smoking caused disease and no basis for the assertion cigarettes were addicting. In the 1950’s, the industry even created the Tobacco Institute, sponsoring research to minimize their culpability. As one executive said, “Doubt is our product since it is the best means of competing with the ‘body of fact’ that exists in the mind of the general public.”
The lawsuits forced the companies to acknowledge, or at least stop disputing, the dangers of smoking. Big Tobacco, dragged kicking and screaming, finally admitted cigarettes are dangerous.
For years, the NFL also downplayed the danger of head trauma, even though the public was certainly aware. As far back as 1960, the seminal television program that helped popularize modern professional football was a documentary about the middle linebacker of the New York Giants, entitled “The Violent World of Sam Huff”. Huff was quoted in Time Magazine, “We try to hurt everybody… We hit each other as hard as we can. This is a man’s game.”
Like the Tobacco Institute research, the initial brain injury research sponsored by the NFL was derided by critics as a whitewash. Now, with lawsuits pending, the League must do everything possible to acknowledge the dangers of head trauma in football.
2. Provide adequate compensation. Money talks. The tobacco companies ultimately settled with the states for $246 billion over 25 years. Unfortunately, settlement money has often been slow to find its way to actual victims and politicians have a habit of appropriating settlement funds for purposes other than tobacco-related diseases. Yet. with settlement funds and sales tax revenues going to the public, Big Tobacco has essentially silenced arguments of avoiding financial responsibility.
The new NFL collective bargaining agreement provides $ 1 billion in benefits for retired players, a not insignificant sum. However revenue streams projected for the next decade suggest the NFL may have even larger sums potentially available to compensate retired players and fund serious medical research on traumatic brain injury. Compared to smokers with disease, the number of retired NFL players with brain injuries is small, perhaps hundreds. The League could certainly compensate them and provide care for them with extra money anticipated in future revenues.
3. Do something positive. Big Tobacco operates under different rules since the lawsuits; advertising is limited and products must display the risks of smoking. Tobacco companies are required to sponsor anti-smoking and cessation programs, unquestionably positive developments (even though the industry still engages in subtle product placement in movies).
As the NFL cases go to court, the League should refine playing rules on head contact and enforce strict protocols for identifying, testing, and treating head injuries. It should work proactively at lower levels of organized football with players, coaches, trainers, and parents instructing them on the risks, as well as techniques and treatment protocols to make football safer without compromising the enjoyment for players or spectators.
The most valuable piece of equipment every NFL player has is their playbook, the first item they must surrender when traded or released. Now, the League needs a special playbook for the coming damage lawsuits or its survival may one day be threatened. The NFL should study Big Tobacco’s playbook carefully - and for good measure add a new play - stiff penalties against teams for bounty programs.
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