The NFL is not Big Tobacco.

Everyone Compares the NFL to Big Tobacco. Here’s Why the Analogy Doesn’t Work.

Everyone Compares the NFL to Big Tobacco. Here’s Why the Analogy Doesn’t Work.

The stadium scene.
March 31 2016 2:54 PM

The NFL Is Not Big Tobacco

What the analogy gets wrong about football and corporate villainy.

Roger Goodell
NFL Commissioner Roger Goodell testifies before the House Judiciary Committee about football brain injuries on Oct. 28, 2009, in Washington.

Chip Somodevilla/Getty Images

In the fall of 2007, Rep. Linda Sánchez of California really gave it to the National Football League. “The NFL sort of has this blanket denial or minimizing of the fact that there may be this link,” she told league Commissioner Roger Goodell, referring to the risk of long-term damage from head injuries. “And it sort of reminds me of the tobacco companies pre-’90s when they kept saying, ‘Oh, there’s no link between smoking and damage to your health.’ ”

Daniel Engber Daniel Engber

Daniel Engber is a columnist for Slate

This analogy would prove to be disastrous for the league’s public image. It rolled up the years of wrangling over scientific data into a tidy formulation: Pro football, like the tobacco industry, connived to cover up a deadly epidemic so as to protect its bottom line. “It was a nightmare scenario,” wrote investigative journalists Steve Fainaru and Mark Fainaru-Wada in their 2013 book, League of Denial, and “one that would haunt the NFL for years.”

Advertisement

Now the comparison has been given its most forceful accounting yet. According to an investigation by the New York Times, published on the newspaper’s front page last Friday, the NFL wasn’t merely acting like tobacco companies—it was acting with them. The Times article, which ran online with the title “NFL’s Flawed Concussion Research and Ties to Tobacco Industry,” reports two separate findings. First, the league’s infamous concussion committee, formed in 1994 and disbanded in 2010, had ignored at least 100 known head injuries in its research. Second, pro football has “a long relationship” with Big Tobacco involving “shared lobbyists, lawyers, and consultants.”

We’re meant to understand that these two facts are not just interlinked but reinforcing. The tobacco companies were “notorious,” the Times reminds us, “for using questionable science to play down the dangers of cigarettes.” Is it any wonder that the NFL—with Big Tobacco’s help—would try to do the same?

That’s a circular argument, one that confuses rhetoric for facts. The presence or absence of “ties” between football and the tobacco industry is more or less irrelevant to fundamental questions about how the league behaved. We know already, based on excellent reporting in League of Denial and other places, that the concussion committee discounted important research on the risks posed by playing football and that it touted its own suspect findings on the subject. But we’re still left to speculate about a crucial matter at the heart of the concussion crisis: Did the NFL behave this way despite having full knowledge of the risks to player health? Were league doctors and executives obtuse and defensive, or were they engaging in a cover-up?

When we compare the NFL to Big Tobacco, we’re imposing a verdict of guilt by association. We’re implying, via syllogism, that since the two businesses appear so much alike, they must have engaged in the same ruthless business practices. We’re saying, yes, we believe the NFL knew exactly what it was doing, just as Big Tobacco knew what it was doing when it covered up the risks of smoking. The analogy can even slide a little further: When we say the NFL is like Big Tobacco, we’re hinting that the hidden ill effects of playing football might be comparable to the hidden ill effects of smoking cigarettes.

Advertisement

So, what do we know about the NFL’s real-world, nonfigurative connections to Big Tobacco? The Times concedes that its investigation “found no direct evidence that the league took its strategy from Big Tobacco,” but rather draws its force from a series of suggestive links: lawyers and research firms that had taken both industries as clients, several personal relationships, a letter sent from a tobacco industry lawyer to the NFL commissioner. The NFL countered with a public statement decrying this “false innuendo and sheer speculation,” and a letter sent to the Times early this week went even further, accusing the newspaper of defamation and demanding a retraction. (The Times refused to retract the story in a tart response on Wednesday.)

Football’s bully lawyers have a point. The article’s purported “ties” between the NFL and the tobacco industry seem sinister and illuminating only if you’re working backward from the premise that the NFL is Big Tobacco Redux.

Among the story’s prime examples is that of Dorothy C. Mitchell, a lawyer who helped her law firm, Covington & Burling, defend the tobacco industry’s trade group in a 1992 case, and then later went to work for the NFL. (Starting in 1997, she served as a legal adviser to the NFL’s concussion committee.) But it’s not a revelation that a lawyer for Covington & Burling, which has represented the NFL for many decades (and where former league commissioner Paul Tagliabue once served as partner) would end up on the NFL’s payroll.

Nor can much be made from the mere fact that a corporate lawyer at a fancy D.C. firm has worked on cases for both the tobacco industry and pro football. Does that suggest the two industries have “ties”? By the same logic, we can infer that Big Tobacco has ominous ties to all the other businesses that Mitchell helped to represent, including Dow Chemical and Kentucky Fried Chicken. (It may even have ominous ties to Slate, which is also represented by Covington & Burling.) Those ties don’t suggest a law-breaking conspiracy of profiteers so much as the existence of a satellite industry of legal advisers, advertising executives, and even research scientists who cater to big business and specialize in fending off civil suits and regulations. We may not like the fact that such an industry exists, but it isn’t surprising, nor is it damning in and of itself.

Advertisement

The Times also notes that the NFL twice hired an unnamed research firm to study player injuries and that the same firm had done work on behalf of the Tobacco Institute. The league’s response asserts that the firm in question is SRI International, which has also done work for the Bill & Melinda Gates Foundation, the U.S. Department of Education, and many other classy-seeming clients. Are all these institutions tied to the tobacco industry, too?

The Times investigation did unearth a 1992 letter that was sent to the NFL commissioner, among others, by tobacco industry strategist Arthur Stevens, general counsel for the Lorillard cigarette company. (A part owner of the New York Giants also had a stake in Lorillard.) Stevens attached a legal decision from the month before, related to an ongoing lawsuit filed by the estate of a smoker who had died from lung cancer. Lawyers for Big Tobacco had succeeded in using a tactic that they’d tried several times before: They had the federal judge in that case removed after he claimed in a court opinion that, “despite some rising pretenders, the tobacco industry may be the king of concealment and disinformation.”

In its response to the story, the NFL notes the lack of any evidence to suggest that this letter was either solicited or taken seriously by anyone at the league office. The league also did some of its own digging. NFL researchers sifted through the 14 million documents in the tobacco litigation archives for evidence of ties between Big Tobacco and the Gray Lady. Sure enough, they turned up signs of a long relationship, comprising connections among Times board members and tobacco-related law firms and research companies. In its letter threatening legal action against the newspaper, the league also noted that the Times took more than $100 million in tobacco advertising after the risks of smoking were well-known.

It’s not worth adjudicating every detail of the back-and-forth since all of these alleged ties to Big Tobacco have little bearing on the question of whether there was, in fact, a Big Football cover-up. The rest of the Times article, about the omitted concussion stats, is much more germane: It suggests that the concussion committee was, at the very least, sloppy in its research and possibly fraudulent. We knew that much already, but now we have more and better evidence of the same.

Advertisement

Still, it’s the Times’ insinuations about Big Tobacco ties that will likely cause more damage. They add heft to a narrative that began even before Linda Sánchez made her analogy in 2007. Earlier that year, Times reporter Alan Schwarz, one of the co-authors of last Friday’s article, had written up the case of Andre Waters, a former defensive back who committed suicide and whose brain was found to have signs of lasting damage. In that article, Schwarz quotes Chris Nowinski, an advocate for athletes with brain injuries, on “the NFL’s tobacco-industry-like refusal to acknowledge the depths of the problem.”

In the years since then, the tobacco comparison has been taken up throughout the media—in newspapers, magazines, TV shows, documentaries, feature films, and pieces in Slate. It’s the coup de grâce of any case against the NFL, a piece of rhetoric so potent that it worked its way into the players’ lawsuit against the league and into legal analyses of their strategy. Any industry that behaves like Big Tobacco must be in the wrong. End of argument, goodbye.

Comparisons to Big Tobacco have become commonplace not just for the NFL, but for any major company in the crosshairs of a public-health campaign. Members of Congress—who are exquisitely attuned to the value of PR—are perhaps most inclined to note the similarity. Last fall, Rep. Eddie Bernice Johnson of Texas likened opponents of new ozone regulations to corrupt doubt merchants from Big Tobacco. In 2014, Sen. Barbara Boxer of California noted the overlap between climate-change deniers and tobacco-industry apologists. Sen. John McCain once compared the marketing of violent movies and video games to the tobacco industry’s predatory methods. And at a congressional hearing in 2005, Rep. Tom Lantos compared a different sports league—back then it was Major League Baseball—to Big Tobacco for the way it was handling the supposed scourge of steroid abuse. (NFL concussion apologist Elliot Pellman, then an MLB adviser, was among the targets of Lantos’ ire.)

Surely there’s some truth to all these claims, in the sense that big business has a cynical playbook for handling—and deflecting—threats from legislators and plaintiffs. But these constant comparisons also overstate the case. The tobacco industry is far deadlier than most of the industries to which it’s gleefully compared. According to the Centers for Disease Control and Prevention, smoking kills about half a million Americans every year. (The worldwide toll reaches 6 million.) It triples mortality rates for adults. It lowers life expectancy by 10 years.

Advertisement

Compare that with playing professional football, which is not, in fact, associated with shorter lifespans. Even in an alternate universe where every single one of the 12,000 NFL retirees perished from the long-term effects of head injuries, that awful tragedy would be a tiny speck beside the carnage of tobacco.

Those who compare the NFL to Big Tobacco sometimes try to qualify their statement, so it’s clear they’re not equating global impacts. The Times article, for example, points out that “concussions can hardly be equated with smoking, which kills 1,300 people a day in the United States.” In other words, it’s not the dangerous outcome that’s alike, but the means by which it was concealed. Playing football is not as bad as smoking cigarettes, but the NFL behaved just like Big Tobacco in the way it hid the facts.

Even that exaggerates the underlying issue. The tobacco industry’s cover-up was staggering in both its scope and its duration. According to League of Denial, the effort comprised 400 law firms and “a database of 180,000 research papers that cost hundreds of millions of dollars to assemble.” The NFL’s efforts to minimize the problem of concussions, on the other hand, amount to a small fraction of that enterprise: The concussion committee, for example, produced a total of 16 papers.

Big Tobacco’s program of obfuscation began in 1953, with the creation of the Tobacco Industry Research Committee. More than 40 years later, industry executives were still testifying before Congress that nicotine is not addictive. By comparison, the acute phase of the NFL’s cover-up lasted from the formation of the concussion committee in the early 1990s until around 2010. At that point, the league was forced to acknowledge that concussions may have long-term effects. It started changing rules to increase player safety and donated tens of millions of dollars for brain-injury research. Progress has been fitful—the league appears to meddle in “independent” research, for example—but it has at least begun. And unlike Big Tobacco, the NFL changed course when the science was still a little fuzzy. Even now, we don’t yet know the prevalence of permanent brain damage among football players, nor do we understand exactly how that damage relates to rates of dementia, depression, or other mental problems.

It doesn’t excuse the NFL, of course, to say that its behavior looks pretty good next to that of Big Tobacco. (Whose wouldn’t?) But if we’re going to make the football-tobacco analogy, and if we’re going to make it at every opportunity, then we should be clear on how far it really goes.