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Sports Sally Jenkins: The NFL acts as if it's above science and the...

Sally Jenkins: The NFL acts as if it’s above science and the law – and that’s unacceptable

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“Biased, agenda-driven, and self-approving.” With that powerful smack of a sentence, attorney Theodore Olson summed up the NFL. This is how the league conducts itself under commissioner Roger Goodell, whether in its travesty of an arbitration with Tom Brady, or its sham of a commitment to the National Institutes of Health on brain study, and attempts to foil and discredit legitimate researchers.

A pair of short, ringingly clear documents delivered a one-two punch to the league on Monday. First, a congressional report condemned the NFL for its “improper” attempt to steer the NIH study of brain diseases afflicting players. Then an appeal by Olson on behalf of Brady to the 2nd Circuit brilliantly destroyed Goodell for running “roughshod over the rule of law” in suspending the New England Patriots quarterback for four games on no evidence. They should be read as companion pieces, and read closely, because they form a consistent portrait of how the league does business. It has no real respect for law, or labor, or science.

Throughout the Brady case, the league has focused on Goodell’s “power,” as opposed to the legally responsible exercise of that power. There was zero evidence that the footballs in the 2015 AFC championship game were deflated by human hand – scientists agree that Goodell and his staff flunked basic physics in failing to recognize the effects of cold wet weather. Faced with public embarrassment, Goodell instead “falsely portrayed” a league investigation as independent, ginned up some bad self-serving science, and misused an arbitration hearing as “an opportunity for management to salvage a deficient disciplinary action by conjuring up new grounds for the punishment,” Olson writes.

The league did this with no thought for the rights of its employees, or for the integrity of American arbitration law.

“The decision and the standards it imposes are damaging and unfair – not only to Tom Brady but to all parties to collective bargaining agreements everywhere,” Olson writes.

That’s the heart of the matter and has been all along.

The league’s conduct with the NIH was strikingly similar: a deficient and false process, with an attempt to strong-arm a predetermined result. In 2012 the NFL pledged $30 million in a partnership with the NIH for the study of brain diseases, especially Chronic Traumatic Encephalopathy, which is deeply relevant to the health of its players. It agreed that the funds would be “governed by federal law” and by NIH policy ensuring the research would be independent and peer-reviewed.

But then the NIH decided to award $16 million to Dr. Robert Stern of Boston University, who had sided against the league in its billion-dollar concussion class action suit.

The league tried to derail Stern’s study before the grant was even formally announced, according to the congressional report. The NFL’s medical director Elliot Pellman, who was long ago discredited for ignoring mainstream concussion science, wrote to the director of the NIH foundation when he heard it was “close to signing off” on the award to Boston University.

“There are many of us who have significant concerns re BU and their ability to be unbiased and collaborative,” Pellman wrote.

Collaborative. That’s one word for the NFL’s approach to brain science. Another is “corrupt.”

That was just the start of the NFL’s attempt to pressure the NIH into depriving Stern of a grant. Dr. Richard Ellenbogen, the “independent” co-chair of the league’s Head, Neck and Spine committee, made two calls to the NIH’s Dr. Walter Koroshetz, telling him outright he wouldn’t recommend that the NFL honor its pledge if the money went to Stern, according to the congressional report. Ellenbogen had applied for the grant and been rejected, finishing second. Ellenbogen told USA Today that the calls were strictly about “protocols” of the study. But he had no business even picking up the phone.

The NFL’s head of health and safety Jeff Miller and other league medical advisers also assailed the NIH with calls and emails, trying to discredit Stern and suggesting the selection process had been flawed – even though Stern’s proposal had been chosen after a lengthy peer review and evaluation.

The congressional report describes one impropriety after another. The NFL not only continually attempted to redirect grant money away from Stern and BU, but, conveniently, every one of its suggestions for redirecting the money had it going instead to the NFL’s own medical consultants.

NIH director Francis Collins, to his everlasting credit, flatly rejected the NFL’s attempt to circumvent the process and steer money to its handpicked researchers. Collins told the league to keep their money. The study would be done by BU, and the NIH would pay for it alone.

That decision cost taxpayers about $16 million, and was worth every penny. The NFL’s financial commitment to brain research is not intended to expand knowledge of the impact of concussions, but to restrict it. According to the congressional report, “The NFL attempted to use its ‘unrestricted gift’ as leverage to steer funding away from one of its critics.”

It should be clear by now that the NFL’s leaders – Goodell and the owners who are his allies – lack any sense of public responsibility or trust. None of the above would have become public knowledge if congressional staffers hadn’t decided to investigate complaints of the league’s attempt to improperly influence the NIH, and if Brady had not had the deep pockets to launch a legal fight, resulting in a judge’s decision to release his sealed arbitration transcript.

The NFL is not mere frivolous entertainment; it’s a giant conglomerate that impacts public policy and affects 32 American cities. Its stance on concussions helps determine how millions of families treat their children’s heads, and its handling of workplace issues has a similarly broad influence on employers. Apparently, when it’s not trying cripple the rights of its employees, it is quietly delegitimizing scientific process, with a potential for compromising public health.

The league’s impact on its audience therefore bears serious governmental examination. This is obviously an entity that needs constant inquiry – with the power of legal discovery and subpoena – to keep it in check.

Fort Worth native Sally Jenkins is a sports columnist for The Washington Post. Contact her at sally.jenkins@washpost.com

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