08/30/2013 11:42 am ET Updated Oct 30, 2013

ESPN vs. NFL: A Win for the NFL Is a Loss for the Players and Fans


As a New Orleans' Saints fan, the least surprising aspect of the National Football League's response to learning that some players received bounties for trying to hurt their opponents was how the NFL managed to narrowly target its "outrage" and minimize the damage to football. It sanctioned the team in one of the smallest markets and contained the condemnation of the sport by naming a few rogue offenders. Review of the media stories following the 2012 "shocking" revelations of players' calculated violent attacks shows the NFL working very hard to avoid questions about its commitment to players' health and safety so as not to might diminish the appeal of the game.

The "bounty-gate" stories came to mind as I read about ESPN's sudden decision to withdraw from a partnership with PBS to present a documentary report about concussions in football. With more than 4,500 former football players suing the NFL over claims that it hid known risks of life changing head trauma, the ESPN decision is puzzling. That is until one considers the consequences of displeasing the NFL.

ESPN is backing out of a project that seeks to explore the reasons that football players, who brought power and wealth to their team owners and their League, have suffered permanent disabilities following their short careers, including premature death. A documentary that graphically illustrates the dangers of the sport as currently played can be powerful. For the premier sports network, however, it is evidently more important to retain the favor of the rich and powerful men who might withhold access to televising the games that promise the largest audiences and hence, command the highest advertising revenue.

To be sure, many argue that football is a profession in which highly paid men choose to play a risky game involving vicious contact. The fans like it this way: The NFL has the highest average per game attendance of any professional sports league; the Super Bowl is one of the world's biggest single day sport spectacles. The owners and the League like it this way: the NFL reportedly generates eight billion dollars in revenue each season. But the NFL's image will take a hit if it defends the foreshortening of players' careers and lives as a concession to the fans. Civilized societies do not countenance gladiatorial contests.

If ESPN takes part in a program questioning the League's commitment to the safety of its players, more than the NFL's reputation might suffer. A graphic portrayal of the real costs of the game to players, to their families, and especially to the untold numbers of young kids playing in school and recreational leagues, who dream of football careers but are more likely to populate the fan base, could ultimately affect professional football's bottom line. Illustrating the costs could soften some fans willingness to spend their money enriching a seemingly callous League.

I learned firsthand of the NFL's sensitivity to criticism of inaction on health issues in the run up to the 1997 Super Bowl in New Orleans. At that time the Superdome had a towering spire in its parking lot topped by billboard featuring the Marlboro Man. Similarly, inside the Dome were several strategically positioned ads for cigarettes. The Louisiana Tobacco Free Kids organized a children's demonstration in the shadow of the Marlboro Man to protest the connection between smoking and sports. The adults present also questioned whether television cameras catching sight of the tobacco ads during game broadcasts violated the ban on TV cigarette advertising. Several news outlets, including national newspapers, reported on the protest, but not the hometown The New Orleans Times-Picayune. A reporter subsequently explained to me that in awarding Super Bowls the NFL expects only "positive press" from local news outlets during the event. Executives worried that the League might count it against the city if the paper carried a report that effectively highlighted the NFL's unwillingness to stand against kids smoking.

Instructive for the current controversy is the fact that the NFL's power was sufficient for the city's major newspaper to censor itself. So too with ESPN, it may be true the NFL did not overtly pressure the network to end its involvement in a critical investigation. Yet it is also true, that the NFL has the power to protect its brand by limiting questions about its commitment to protecting the health of the players and fans.

The NFL, however, is not invincible. The just-announced settlement of the pending law suits with an agreement to a payout (or payoff) of $765 million is not insubstantial to the suffering former players. But to the NFL it may be little more than a strategic play resulting in the loss of a few yards before the beginning of another multi-billion dollar football season. The NFL need not admit wrongdoing, provide the public with its evidence of head trauma risks and how to reduce such injuries, nor implement any new protections for current players. In short, the NFL appears to have adopted a strategy designed to minimize any lasting harm to either its earnings or its brand.

At the same time, the NFL wins as PBS loses ESPN as a partner in questioning whether professional football can and should be made safer for its players. The NFL is presumably betting that its law suits settlement and the absence of ESPN's imprimatur will reduce viewership of the PBS Frontline documentary. Wouldn't it be ironic, however, if we could keep this controversy alive for longer than a news cycle? Not only might more people watch the Frontline broadcast, if only to see what "the fuss" is about, but some might also consider whether the current power and brand of the NFL is worth their continuing unconditional support.

Leslie Gerwin is the Associate Director of the Program in Law and Public Affairs at Princeton University and Adjunct Professor of Law, who teaches Public Health Law and Policy, at the Benjamin N. Cardozo School of Law, Yeshiva University.