The Pro Football Concussion Report

A Fan's Look at Head Injuries and the Concussion Crisis in Football

Paul Tagliabue, Elliot Pellman and Tobacco Industry Science

Paul Tagliabue Pete Rozelle NFL 1990
Paul Tagliabue and Pete Rozelle, 1990 NFL Player Draft (AP)

02.24.13

In 1994, then NFL commissioner Paul Tagliabue hand-picked New York Jets team doctor Elliot Pellman to head the league’s newly created Mild Traumatic Brain Injury (MBTI) Committee. The 13 year existence of that committee and the appointment of its shockingly under-qualified chairman, has raised more questions than any solutions or insight it ever offered on the issue of brain injuries and the NFL.  The work of that committee is also at the heart of the plaintiffs’ legal filings in the current wave of concussion lawsuits. To make any sense of this enigma, it’s helpful to look at the history behind the NFL’s 1989 hiring of attorney Paul Tagliabue as commissioner.

Paul Tagliabue graduated from Georgetown Law School in 1965 and only 4 years later landed a job at the prestigious Washington D.C. law firm, Covington and Burling, LLP. Covington and Burling is one of the most prominent and internationally connected law firms in the world. Founded in the nation’s capital in 1919 “to advise and represent corporations” they have long represented large and controversial corporate clients including Eli Lilly, Monsanto, Halliburton, Blackwater, Exxon and Phillip Morris. In 1958 the tobacco industry’s newly created trade group, the Tobacco Institute, appointed Covington and Burling as its first legal counsel, a position they would hold through the prosperous 1960’s and 1970’s and into the peak of litigation and controversy, the 1990’s. Covington and Burling was probably the most influential and closest advisor to the American cigarette industry during the last half of the 20th century. In a 2006 legal opinion, Federal Judge Gladys Kessler harshly criticized the law firm’s longtime and influential relationship within the tobacco industry. Judge Kessler wrote, “Finally, a word must be said about the role of lawyers in this fifty-year history of deceiving smokers, potential smokers, and the American public about the hazards of smoking and second hand smoke, and the addictiveness of nicotine . . . they devised and coordinated both national and international strategy; they directed scientists as to what research they should and should not undertake; they vetted scientific research papers and reports as well as public relations materials to ensure that the interests of the Enterprise would be protected; they identified ‘friendly’ scientific witnesses, subsidized them with grants from the Center for Tobacco Research and the Center for Indoor Air Research, paid them enormous fees . . . ”

Almost as long as Covington represented the cigarette industry, they have also worked with the team owners of the National Football League. Covington’s Gerhard Gesell was first hired by the NFL back in 1960 to fight off antitrust issues generated by creation of the new AFL. Gesell would later become a federal judge in the District of Columbia and preside over famous trials including Watergate and Iran-Contra. In addition, Covington attorney Hamilton Carothers was a close associate of Commissioner Pete Rozelle and acted as General Counsel of the NFL for many years, including through the contentious AFL-NFL merger agreement of 1966. During the 1970’s Tagliabue’s mentor and Covington attorney James McKay was also very busy protecting the interests of the NFL. One notable case that McKay won for the NFL involved an antitrust lawsuit brought by QB Joe Kapp involving the NFL player draft. Succeeding Tagliabue as the NFL’s point man at Covington was Jeff Pash, Harvard graduate and the current General Counsel of the NFL. Pash’s first job as an attorney was working at Covington under Tagliabue. The current NFL star attorney at Covington would likely be Covington partner Gregg Levy. Levy played a pivital role in the 2011 CBA negotiations as well as defending the NFL from a handful of recent antitrust lawsuits. In addition, other Covington attorneys have moved on to powerful positions.  The current U.S. Attorney General Eric Holder, and the U.S. Justice Department’s Lanny Breuer and Dan Suleiman all have previously worked at Covington. Some suggest that the  lack of Wall Street meltdown prosecutions by the U.S. Justice Department is a result of the high government placement of powerful attorneys with a background from such a well-connected, defense-oriented, big business law firm. It seems that as cozy a relationship that the U.S. Treasury Department, the Federal Reserve and Goldman Sachs enjoy, the U.S. Department of Justice is as smitten with Covington Burling.

As a specialist in anti-trust law, Tagliabue handled many of the Washington D.C. related legal issues. With the NFL as a client, Tagliabue was instrumental for the defense in the 1986 USFL vs. NFL antitrust lawsuit. Technically, the NFL lost the case, but practically was a big winner. The USFL only ever received a jury award of $3, and folded after the trial.  (As the loser in the trial, the NFL had to write a larger 2nd check to cover USFL attorney fees in the case, approximately $6 million.)  By 1989, Tagliabue’s legal cunning in protecting his clients had earned him the respect of most of the NFL team owners. After Commissioner Pete Rozelle announced his retirement the attorney Tagliabue was soon elected as commissioner by a majority vote of the 28 owners over Chicago Bears and New Orleans Saints football executive, Jim Finks.

Tagliabue’s legal expertise and business acumen helped propel the NFL to unprecedented profits and financial security. He introduced collective bargaining and also binding arbitration as methods of securing stable financial commitments to the thousands of players. He is also credited with introducing revenue sharing, expanding television broadcasts and revenue, adding 6 additional franchises and the construction of 17 new stadiums.

The current concussion litigation and former commissioner Paul Tagliabue may converge upon the 1994 creation of the MTBI committee. Contrary to its billing as a group of experts funded to research and study the effects of brain injuries on NFL players, the plaintiffs’ attorneys in the current lawsuits offer a different perspective.  The complaint alleges, “Notwithstanding this purported purpose, and despite clear medical evidence that on-field sub- concussive and concussive injuries can produce MTBI with tragic results, the NFL (a) failed to inform its current and former players of the true risks associated with MTBI and purposefully misrepresented and/or (b) concealed medical evidence on that issue.” The complaint further alleges that the MTBI committee voluntarily inserted itself into the MTBI research and public discourse . . . wrongfully advanced improper and biased information, falsified industry-generated studies and discredited well-researched and credible studies that came to a conclusion that did not comport with the NFL’s financial and political interests. Finally, the committee and the NFL failed to inform all former players, all then- current players, and the general football-playing public of the risks of MTBI in football. The NFL itself finally distanced itself from the work and conclusions of its own MTBI committee after a embarrassing congressional hearing in late 2oo9.

The current allegations in the Plaintiffs Master Complaint against the NFL regarding the MTBI committee are eerily similar to Judge Kessler’s conclusions regarding the actions of the tobacco industry’s hand-picked researchers and scientists. Perhaps it is less than a coincidence – the similar formation of expert scientific panels producing questionable and later discredited information can be possibly traced back to the aggressive legal strategy of one law firm and its attorneys, Covington and Burling, LLP. The details behind the qualification and experience of Dr. Elliot Pellman may be as unimportant as the qualifications of the tobacco experts that were later discredited. What is relevant though is the qualification and experience of the brilliant attorney that chose as a chairman of a brain-injury research group a rheumatologist who attended medical school at the Universidad Autonoma de Guadalajara in 1975 and had no training and little experience in medical neurology. Of course, the possibility exists that it was simply a resume oversight by Tagliabue, although Pellman was able to hold his position as the NFL’s top authority on brain injuries for 13 years until his resignation. At the time of his resignation, Greg Aiello, NFL spokesman, said that Pellman requested to be replaced and that the move was merely administrative.

If on April 9, U.S. District Judge Anita Brody rules that the concussion lawsuits can move forward, then perhaps plaintiffs’ legal discovery will shed more light on the decision-making process at the NFL offices. If on the other hand, Judge Brody finds for the defense and agrees with the NFL that their collective bargaining agreement preempts all player health lawsuits and calls for mandatory binding arbitration, then we may never discover the facts behind the strange hiring of Dr. Elliot Pellman.

Related Story: The Boys of Covington

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