The Whole Picture: New York Times Investigation Calls into Question the NFL’s Concussion Research

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“It was understood that any player with a recognized symptom of head injury, no matter how minor, should be included in the study.” — Mild Traumatic Brain Injury Committee

On Thursday, March 24, 2016, the New York Times published its conclusions following an investigation into research conducted by the National Football League from 1996 to 2001 into the dangers of head injuries to athletes. The Times’ investigation uncovered potentially major flaws and omissions in the research, as well as purported similarities between the NFL’s approach to the dangers of concussions and Big Tobacco’s approach to the discovery of the dangers of tobacco.

In 1994, in response to a number of athletes retiring early due to “a cascade of frightening concussions,” then-NFL Commissioner Paul Tagliabue established the Mild Traumatic Brain Injury Committee to investigate the risks of head injuries. The MTBIC ultimately published a total of 13 peer-reviewed articles documenting what its research, conducted between 1996 and 2001, purportedly showed. According to the Times, the NFL used these articles to support its position that brain injuries did not cause long-term harm to athletes.

The Times’ investigation was based on recently obtained confidential concussion data for athletes that it claims was “the backbone” for the MTBIC’s 13 articles. The data consisted of 887 recorded concussions which were purportedly “consistently described as every head injury that teams had cared for during those six seasons.” The issue however, according to the Times, is that the MTBIC failed to include at least 100 concussions in its studies. Dr. Joseph Waeckerle, a former member of the MTBIC, denied knowing of the omissions but did state the following:

If somebody made a human error or somebody assumed the data was absolutely correct and didn’t question it, well, we screwed up. If we found it wasn’t accurate and still used it, that’s not a screw-up; that’s a lie.

Within hours of the release of the Times’ article, the NFL issued a response criticizing the Times and the article on a number of grounds. In part, it refuted the claim that the data at issue was originally purported to be complete, stating that the MTBIC’s studies “[were] clear that the data set had limitations” and that “[t]he studies never claimed to be based on every concussion that was reported or occurred.” The NFL further justified these potential deficiencies, stating that the studies were “necessarily preliminary and acknowledged that much more research was needed,” and that the data from those studies “[has] not been used in any way by the current Head, Neck and Spine Committee in its research on player health and safety.” It admonished the Times, stating:

Since learning of the proposed story, the NFL provided the Times with more than 50 pages of information demonstrating the facts. The Times ignored the facts.

The Times drew further ties between the NFL and Big Tobacco, claiming that “records show a long relationship between two businesses with little in common beyond the health risks associated with their products,” though it acknowledges that smoking is responsible for far more deaths than concussions are. Despite this, the Times went on to claim:

[T]he records show that the [NFL and Big Tobacco] shared lobbyists, lawyers and consultants. Personal correspondence underscored their friendships, including dinner invitations and a request for lobbying advice.

Other allegations by the Times included a claim that the NFL assigned Dorothy C. Mitchell, a lawyer who had previously defended a tobacco industry trade group known as the Tobacco Institute, to oversee the MTBIC; that there was overlap in ownership between NFL teams and organizations responsible for “misusing science to hide the risks of cigarettes”; and that at least twice during the 1970s and 1980s, the NFL hired a company, of which the Tobacco Institute was also a client, to study player injuries.

The NFL refuted each these claims as well, in part pointing out that “The Times itself states: “[it] has found no direct evidence that the league took its strategy from Big Tobacco.””

This all comes less than two months after allegations surfaced that the NFL may have improperly influenced concussion research, as well as in the midst of ongoing multi-district concussion litigation in which it is a Defendant. Though a settlement was reached in that litigation, a numbers of players appealed to the Third Circuit in August. It is unclear what if any impact the Times’ investigation will have on concussion litigation involving the NFL, but this almost certainly won’t be the last we hear of it.

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