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The NFL May Have to Pay to Keep Its Fans—A Commentary by Stephen L. Carter ’79

The following commentary was posted on Bloomberg.com on August 30, 2012.

The NFL May Have to Pay to Keep Its Fans
By Stephen L. Carter ’79

Professional football resumes next week, and not a day too soon.

Regular readers know how much I love the sport, and I have written before about the depression that settles over the true fan as the last minutes of the Super Bowl tick down -- the sadness of knowing that the long interregnum is upon us.

But this offseason has been more depressing than most. The most popular sport in the U.S. has had a difficult year. As one scandal followed another, one might have expected a dampening of enthusiasm among the fans. I myself was not sure whether I would respond with the same excitement as in the past. Yet, as the opening game approaches, I detect within myself the familiar quickening of breath and heart, the lightness of tread, the hidden smile that together signal the anticipation of old. I thrilled to the first football game I ever attended -- a high school contest, back when I was 6 or 7 years old -- and the excitement has never flagged.

But what of the horrible news these past months? Why has my love not weakened?

Consider the list:

In the college ranks, the Penn State scandal dominated football news in the spring and early summer, but the iceberg of scandal only widens as one examines down below. Another alleged coverup of football misdeeds -- in this case, multiple sexual assaults by players -- is being investigated at the University of Montana. Add in the academic scandal that hovers over North Carolina’s program, and one can see why some people have even called for the abolition of big-time college football.

Many Lawsuits

Of course, colleges weren’t alone in making headlines during the sport’s hiatus from the field. The pro ranks were shaken by reports of the bounty program supposedly run by the New Orleans Saints, in which players were offered bonuses for injuring opponents. A league investigation led to multiple suspensions of New Orleans players and coaches. (Some of the players have challenged the penalties.)

Then there is the lawsuit filed in June on behalf of former players against the National Football League itself, claiming that the league knew, and didn’t tell its players, about the correlation between repeated hits to the head and a variety of cognitive losses, including early-onset Alzheimer’s disease. The league, meanwhile, has turned around and sued its insurers, who claim that the case isn’t covered by their policies.

As if that were not enough, the league has locked out its referees as part of a continuing contract dispute, and has announced that it will use replacement officials (who don’t seem to be doing such a good job) during the first week.

After so debilitating an offseason, why keep at it? Love, obviously -- an irrational but still dizzying love affair with a partner you adore despite (his, her or its) imperfection. But there is a difference between discovering your partner’s imperfections and discovering your partner’s secret life.

That is why, of all the scandals of the offseason, the only one with any serious chance of diminishing support for the sport among fans is the lawsuit by the players. The complaint doesn’t just allege the injuries; the complaint alleges that the league, like Big Tobacco, knew all along. So brutal are the factual allegations that Andrew Sullivan was moved to refer to the retired players as “bludgeoned human cattle.”

The NFL has been trumpeting a study by the National Institute for Occupational Safety and Health concluding that professional football players actually live longer than men in the general population. (The research was an update of a 1994 study on the same topic, requested by the players, not the league. The earlier study reached similar results.)
Mortality Rates

Data compiled by Bill Barnwell, a staff writer for the online sports magazine Grantland, go further. Barnwell concludes, surprisingly, that professional baseball players have higher mortality rates than similarly situated professional football players. As Barnwell points out, however, studies of lifespan tell us nothing about the quality of those lives. Barnwell reminds us that retired football players often suffer great pain. Add to this the relatively high rates of cognitive impairment alleged in the lawsuit, and one is forcibly reminded that quality of life often trumps quantity of years.

Maybe the allegations of the lawsuit are bunk. Maybe the NFL had no idea of the damage being done to its players. But this doesn’t seem like the sort of thing that’s in the league’s interest to litigate. One reason is that you never know what confidences will tumble into public view once the trial starts: the term “human cattle” might start to look credible. A larger reason is that the fans seem to be siding with the players -- and the NFL, if it fights this thing too hard, is going to start looking like the wealthy factory owners E.L. Doctorow describes in his novel “Ragtime,” whose response to the news that employees have been injured or killed on the job is to counsel the rest to be more alert.

The NFL is enormously profitable. Even if it costs a few tens of millions to make the lawsuit go away, it would seem to be a price worth paying. An exciting new season is about to kick off. There are fans everywhere who love the sport. This is not the moment to risk their affection.

(Stephen L. Carter is a Bloomberg View columnist and a professor of law at Yale University. He is the author of “The Violence of Peace: America’s Wars in the Age of Obama,” and his most recent novel is “The Impeachment of Abraham Lincoln.” The opinions expressed are his own.)