The NFL has huffed and puffed in the general direction of the New York Times. But the league won’t blow the newspaper’s house in. Because to do so would potentially blow in the NFL’s own house.
As made clear in Monday’s letter from outside NFL counsel Brad S. Karp to the Times, the league is considering the filing of a defamation lawsuit arising from last week’s article regarding allegedly faulty concussion research and connections between the NFL and the tobacco industry. And if the Times acted with reckless disregard as to the truth or falsity of the information reported about the NFL, the league would be able to prove a violation of the law.
The case would get very dicey for the NFL when it comes to proving damages. To determine the precise harm to the NFL’s reputation in the community resulting from the false statements, a jury would need to gauge the league’s pre-existing reputation in the community. And that would open the door to all sorts of fishing expeditions that would consist of ferreting through closets in search of skeletal remains.
The league’s handling of the concussion issue would be the primary battleground for evidence showing behavior consistent with the picture painted by the Times article. But other stuff would surely be dragged into the case in an effort to help jurors understand the perception of the NFL that existed before last week’s publication of the disputed Times article.
The so-called discovery process, featuring the review of documents and sworn testimony from folks like Commissioner Roger Goodell, would generate plenty of intriguing nuggets. And while the league successfully has managed in multiple cases to shield Goodell from submitting to the legal process (and, based on some of his testimony, that’s a good thing), it will be difficult if not impossible for the NFL to initiate legal proceedings and simultaneously shield Goodell from them.
Owners also would testify. Based on the inability of several of them to stay on message regarding the most fundamental aspects of the concussion situation, things could go haywire if/when people like Jerry Jones or Jim Irsay are placed under oath and asked far more complex and nuanced questions about NFL business.
So there’s no way that the NFL will sue the Times. Unless the NFL is willing to light a fuse that eventually would meander right back to the league itself.
