Roger Goodell has been the NFL commissioner since 2008. (Luis M. Alvarez / AP)

The NFL has found a cure for chronic traumatic encephalopathy, or CTE, the dreaded brain disease—at least as far as its legal liability goes. This is why it pays Commissioner Roger Goodell the big bucks. He still runs a professional sports league that is shown as much respect as a state within a state, like the Vatican. The Third U.S. Circuit Court of Appeals’ decision to affirm the NFL’s $1 billion settlement with 5,000 retired players is a coup for the league. The NFL admitted no wrongdoing. CTE wasn’t covered. The threat of further litigation was removed by putting all retirees under the terms of the agreement. With such a complete affirmation, more appeals—to a larger panel of Third Circuit judges or the Supreme Court—now are considered legal long shots. “From a business point of view, [the NFL] … avoided what may have been the biggest risk to their continued prosperity,” noted Andrew Brandt, an NFL business analyst for ESPN and former Green Bay Packers executive, in April 2015, when a federal judge approved the settlement. “Removing this as a threat is extraordinary.” Nobody lawyers up while making sincere protestations of loving the other side like Goodell. He is a corporate version of Baccala, the Mafia godfather in “The Gang That Couldn’t Shoot Straight,” whom author Jimmy Breslin likened to a “Sicilian Dean Rusk. Be a little smooth and give a little on the surface. After the conference ends amicably, send in the B-52s.” Making Goodell’s legal campaign even more impressive, he was bucking a popular narrative that showed compassion for players suffering from CTE who later committed suicide, such as Junior Seau, Mike Webster, Andre Waters and Dave Duerson. The movement was led by The New York Times, ESPN and PBS, and it included a motion picture, “Concussion,” which dared to present Goodell and predecessor Paul Tagliabue as callous bureaucrats. You may not think the movie is great. I didn’t. It turned Dr. Bennet Omalu’s crusade into a soap opera, going so far as to show someone—NFL operatives?—following his pregnant wife, prompting her to miscarry. Of course, we never got to see the version before Sony Pictures management ordered it softened. According to leaked Sony emails, via The New York Times, an executive noted that “most of the bite” had been taken out of the film. Sony’s president of domestic marketing also wrote, “We’ll develop messaging with the help of NFL consultant to ensure that we are telling a dramatic story and not kicking the hornet’s nest.” The movie still resonates. In a few brief scenes, supporting actor David Morse makes you feel Mike Webster’s madness in a way I’ll remember whenever I see players go helmet to helmet. In real life, this story has no Hollywood ending. The appellate judges took a microscopically focused position, which they acknowledged as imperfect—“We may want different terms for a certain condition”—but saw as better than “an unsupported hope that sending the parties back to the negotiating table would lead to a better deal.” I’d argue that the NFL would be wide open to a bigger, more comprehensive deal to handle CTE, the public relations nightmare of nightmares, which gives the lie to its protestations of caring. If $1 billion sounds like a lot, it breaks down to $33.3 million per team. Let’s say the league assesses the payments over 20 years. That’s $1.7 million a year per team. With Forbes projecting the average NFL team’s operating profit at $76 million annually, the cost of this landmark settlement would amount to a 2.2 percent tax in today’s dollars, less as league revenues increase. It’s important money to Goodell, who says he aims to grow the present $10 billion in revenues to $25 billion. That, not compassion, will be his legacy, at least in his world. The appellate decision came as a surprise, with the ground shifting dramatically since Judge Anita B. Brody accepted the terms of the settlement a year ago. The science continues to evolve, suggesting ever more pointedly the toll taken by football. A study presented this week at the meeting of the American Academy of Neurology says that 40 percent of retired NFL players examined by a sensitive MRI scan called “diffusion tensor imaging” showed signs of traumatic brain injury. More to the point, the NFL got away with stonewalling in the settlement what it acknowledged before the House of Representatives last month. Asked if there’s a link “between football and concussions and degenerative brain disorders like CTE,” Jeff Miller, the NFL’s vice president for health and safety, shocked the world by admitting: “The answer to that is certainly, yes.”
Is comparing the NFL’s handling of its health crisis to the tobacco industry a fair comparison?
Yes
No
Goodell’s people had no choice but to contend that that had been the NFL position all along and hope no one noticed. The New York Times included the league’s response but gave it no credence in its headline: “NFL Shifts on Concussions, and Game May Never Be the Same.” Scratch that. The game stayed exactly the same. The appellate judges, sitting in Philadelphia, took note of Miller’s admission, but ruled it was “not a ground for reversal of the settlement’s approval.” The settlement didn’t oblige the NFL to admit any wrongdoing, enabling Goodell to put on his sincere face and climb back on his high horse. “There was no admission of guilt,” quoth the compassionate commissioner when the original concussion settlement was reached in 2013. “There was no recognition that anything was caused by football.”
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