The National Football League’s recent written demand that the New York Times retract an investigative piece alleging the multibillion dollar sports league used tobacco industry attorneys to hide sensitive concussion findings—or face legal action—came as little surprise to DeMaurice Smith, a man who is no stranger to NFL-related litigation.
“My first reaction was ‘Welcome to the club,’” said Smith, executive director of the NFL Players Association, during his morning keynote speech at the Fordham Sports Law Symposium, hosted by the Fordham Sports Law Forum, on April 1. “All of our fights with the NFL have resolved themselves or not resolved themselves in the courtroom,” he added.
Smith has served as NFLPA executive director for seven “incredibly challenging and rewarding” years, most notably helping to usher in a new collective bargaining agreement that ended the lockout prior to the 2011 season.
During his symposium address, Smith spoke with relish about his contentious relationship with NFL Commissioner Roger Goodell, described the NFL as the “largest legal cartel in America,” and encouraged students and lawyers to consider the deeper meaning of events such as the NFL’s lawsuit threats against the New York Times.
The NFL’s response to the March 24 Times article titled “N.F.L.’s Flawed Concussion Research and Ties to Tobacco Industry” should raise societal questions about corporate cartel power, chilling free speech, and intimidation, Smith said.
“They don’t like to play the bigger game of what’s right and what’s best for everybody because they don’t have to,” Smith said of the NFL, noting a lack of federal and state oversight shields the league, which collected an estimated $12 billion in revenue in 2014, from accountability.
As an example of the NFL’s “cartel power,” Smith pointed to its attempt to restructure TV contracts prior to the 2011 season that would have netted it $4 billion, even if a lockout forced the season’s cancellation. The union sued over this proposal and a judge later ruled it unlawful, he noted.
More recently, the NFLPA protested league proposals that two personal fouls in one game would result in an automatic suspension. Such a proposal is not part of the collective bargaining agreement, Smith has reminded Goodell. It also raises questions about why players continue to stay in games when exhibiting concussion symptoms.
“Why is it so easy to come up with a two personal foul rule when it’s so hard for teams’ medical staffs to treat our players as people, as opposed to fungible commodities?” Smith said he asked Goodell.
Smith told the audience he “loves every minute” of his advocacy on behalf of NFL players, many of which center on the “esoteric idea of rights,” related not only to collective bargaining but also medical ethics and federal and state law.
There’s very little bandwidth for discussions among football fans of rights, moral responsibilities, and moral obligations, Smith acknowledged. Nor is there any other organization standing up for the rights of the players who power America’s most popular, and lucrative, sport; the NFLPA is it.
“We’re the union, baby, and we take our obligations seriously,” Smith said. “And while at the end of the day this job may kill me, it’s still the best job on the planet.”