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Weekly September 28, 2012

How the NFL Was Forced into Fourth & Long Robert Hibbert on Food Labeling Lawsuits GMOs & Junk Science: Apocalypse Soon If Not Now Michael Lichtenstein on Bankruptcy

How the

NFL Was Forced into Fourth & Long Jason Maloni Originally Published on Levick Daily


Action Sports Photography /


1. The NFL never assumed control of the narrative.

referees at the helm. Had the league taken this

Thursday morning quarterback and examine

From the outset (preferably weeks before the

ily-anticipated issues related to player safety

the Thursday night matchup between the

some of the communications missteps that

season started), the NFL needed to aggres-

and “the integrity of the game” did arise. In-

Cleveland Browns and Baltimore Ravens.

allowed public opinion to so one-sidedly turn

sively educate fans, players, coaches, and the

stead, the league was reticent to address the is-

While Monday Night Football’s controver-

against the league. Even with a number of

media as to the key sticking points that forced

sue and stubbornly insisted that the game and

sial outcome was certainly a catalyst in

compelling talking points on its side, the NFL

it to lock out the regular referees—nearly all

its players would not suffer. It even praised

getting a deal done, there were a number

was forced into fourth and long. Here’s how it

of which provided ample justification for the

the replacements after a lackluster Week One

of other factors that robbed the league and

all went down:

league’s decision. Simply put, the NFL wanted

performance. This had the opposite effect

owners of significant leverage and forced

a slate of full-time referees who could devote

of making the NFL seem out-of-touch with

them into a compromised position at the

their professional lives to ensuring the highest-

on-filed reality and reinforced an already-

negotiating table.

quality officiating. The referees wanted to

dominant perception that the league believed

keep their day jobs—and maintain retirement

fans would keep coming back, no matter how

benefits that simply don’t exist for part-time

diluted its product and brand might become.

employees in just about any other industry.

Ultimately, the NFL’s and silence and refusal

In the end, the NFL didn’t work hard enough

to recognize the issue was perceived as arro-

to communicate this point, which could have

gance whispered—and that rubbed stakehold-

painted the regular referees as the ones hold-

ers the wrong way.

As of this writing, ESPN’s Chris Mortensen

With the regular refs making their much-an-

and John Clayton are reporting that the

ticipated return to work (with a few new perks

NFL’s regular referees have ended their

in hand to boot), there’s no better time to play

lockout and will return to work tonight for

seemingly counterintuitive step, it would have been seen as prescient and in-touch when eas-

ing the game hostage for perks that fall outside acceptable norms. As ironic as it may sound, the league had a chance, early on, to make the lockout about player safety rather than money.

3. Social media sentiment overwhelmed the NFL.

Better trained and younger referees would

In the wake of Monday night’s debacle, the

make for a safer NFL. Instead, the league

Twitter-sphere erupted with criticism from

and owners were silent and they ceded the

fans, players, and commentators who dubbed

safety message.

the controversial call “The Inaccurate Reception,” a “Fail Mary,” and “Conduct Detrimen-

2. The league’s silence was perceived as arrogance.

tal to the League.” All the while, the league’s

With its stance fully articulated and its view

marketplace with the steps outlined in points

of the heroes and villains established, the NFL

one and two, there was simply no way for

could have then prepared fans, players, and

the NFL to keep up with, or at least manage,

coaches for the fact that games simply weren’t

a social media deluge that affixed the blame

going to run as smoothly with replacement

stance remained virtually absent from the conversation. Without prior conditioning of its


Some may think that the NFL lost its leverage when the call heard round the world was made on Monday night. The reality is that its position was weakened long before the replacements ever took the field.”

squarely on the league’s shoulders. There was

credibility needed to sway public opinion. Ulti-

no time to rally supportive and influential

mately, the NFL paid a price for that decision.

Robert Hibbert

on Food Labeling Lawsuits

third-parties and no chance to reverse an overwhelmingly negative tide of sentiment. In the age of social media, proactive and preventative communications are the only way to ensure

5. The regular refs never feared losing their jobs.

a story doesn’t spin beyond an organization’s

In many labor disputes, it is important that

control when trouble arises. The NFL didn’t do

management articulate that it won’t allow

the legwork up front. As such, it was caught-

labor to hold the organization over a barrel

flat footed at the moment of truth.

forever—and referee lockout was no different. Not once did the NFL articulate an acceptable

4. Where were the owners’ moderate, trusted voices?

contingency plan in the event that a settlecommunicate that a “Ronald-Reagan-air-traffic-

Today on LEVICK Daily, we continue our examination of recent lawsuits filed against the food and

Throughout the entire dispute, the league’s

controllers” option was on the table. In the

beverage industry with Robert Hibbert, a Partner in the Washington D.C. office of Morgan, Lewis &

key spokespeople were incendiary and con-

end, that allowed the regular referees to simply

Bockius. Aggressive consumer advocacy in the area of food labeling dictates a need for companies

troversial figures such as Commissioner Roger

sit tight and watch as officiating mistake after

to factor new levels of scrutiny into their marketing decisions, monitor precedent-setting decisions

Godell and Dallas Cowboys owner Jerry Jones.

officiating mistake reached critical mass and

in the cases that have already been filed, and perhaps even establish industry-wide guidelines that

Where were the more widely-respected,

forced the NFL to meet at least some their most

buttress their compliance messaging.

moderate voices of the Mara and Rooney

important demands.

families? Where were the statements of solidarity among all 32 NFL owners? With all the controversy that has dogged the NFL in recent years, the messengers were as important as the message in this latest public relations ordeal. The faces of the NFL’s argument lacked the

ment could not be reached and not once did it

Some may think that the NFL lost its leverage when the call heard round the world was made on Monday night. The reality is that its position was weakened long before the replacements ever took the field. Because the NFL didn’t communicate as aggressively as it could have, it was fourth in long before it ever got the ball. L Jason Maloni is a Senior Vice President at LEVICK and Chair of the firm’s Litigation Practice. He is also a contributing author to LEVICK Daily.

GMOs & Junk Science: Apocalypse Soon If Not Now Richard S. Levick, Esq. Originally Published on


In some ways it’s remarkable that Rachel

front, the result will be well-nigh apocalyp-

As the experts scrutinized the new study, they

potential for cherry-picking the nice positive

Carson is still controversial, as we’ve been

tic. It would devastate the very environment

found quite a bit to question. For example,

results here from a sea of boring null ones is

reminded by this month’s 50th anniversary

they’re forsworn to safeguard.

rats that ate more of the genetically modified

immense,” he blogged. NPR joined the skeptics:

corn actually did not get as sick as those who

“No one has found new toxic substances in

ate less of it. The researchers also chose rats

these crops. And the giant feeding experiment

that have a tendency to develop tumors if their

that’s been going on for the past fifteen years

diets are not controlled. They provided graphic

—hundreds of millions of Americans consum-

pictures of the afflicted rats which, as one

ing GMO ingredients—hasn’t produced evi-

UK researcher noted, encourage the dubious

dence of harm, either.”

of the publication of Silent Spring. A heroine to many in the 1960s, including President John Kennedy, Carson is credited with igniting, or at least profoundly influencing, what we now think of as the modern environmental movement.

I refer to the wave of attacks on genetically modified organisms (GMOs) and genetically modified foods, and the crusade to halt the production of disease-resistant crops essential to support human life in the coming decades. Consider that the world’s population could

Yet the book’s attack on DDT and other pesti-

double by 2050, according to the United Na-

cides still inspires vigorous counter-assault,

tions Population Fund. Under present circum-

especially the compelling claim that the sub-

stances, that will create an untenable burden

sequent ban led to deadly malaria epidemics

on food production absent wider application of

in Africa. Like many environmental crusaders

GMO technology.

today, Carson was also accused of using what we now call “junk science” to advance her personal agenda.

One recent assault on GMOs that has captured international attention typifies the fight we’ve got on our hands. This study, published on

A half-decade later, we now confront some

September 19, purportedly shows that rats

activists whose agendas seem all too clearly in-

who were fed genetically modified maize

terested; whose research studies should prove

sprayed with a weed-killer, or who drank wa-

an embarrassment to responsible environmen-

ter with specific levels of that weed-killer, were

talists. If anything, the anniversary of Silent

much likelier to develop tumors that block or-

Spring ought to occasion even closer scrutiny

gan function, and to die earlier than rodents in

of such “science” if only to better preserve the

a control group. (Both the corn and the weed-

legacy of what its author and those like her

killer are produced by Monsanto, perennially

did accomplish for the greater good. As some-

at the epicenter of the ongoing

one who spent a career in the environmental

GM controversy.)

movement, I know that sound science only serves the cause in the long run.

The study came as quite a surprise to scientists. Reputable regulatory and health

Such scrutiny is all the more exigent because,

agencies in the U.S. and EU that have looked

if our latter-day guerilla environmentalists

closely at GMOs found them safe, as have the

achieve their goal on one particularly critical

National Academy of Sciences and the British Royal Academy.

impression that such symptoms never occur in control groups. Finally, there were only 20 rats in the control group, too small a sample for meaningful comparison.

Despite its methodological deficiencies and the many critiques from diverse sources, the study is already having impact. There are calls in France and Austria for further investigation.

One exasperated medical statistician pointed

Stateside, the research is fueling California’s

out that the study included 18 exposed groups

Yes on Proposition 37 initiative to label

compared to only two control groups. “The


Bruce Chassy, professor emeritus of food science at the University of Illinois, calls it “a well-planned and cleverly orchestrated media event…The purpose was not to produce new scientific information but rather was to negatively influence public opinion of GM crops. “This makes a mockery of science,” adds Chassy. Another current environmental study, also

...we are still living though a historic drought that has had a painfully obvious impact on agriculture. Next year promises to be worse as El Niño conditions are forecast to develop in the Pacific Ocean, heating water surfaces to such an extent that observers predict record-breaking temperatures in 2013.

from France, discloses the same disturbing pattern in which a tendentious report wreaks havoc on manufacturers (and farmers) even though its scientific integrity is being effectively questioned. This controversy is additionally resonant on the 50th anniversary of Silent genetically modified food. Meanwhile, the researchers themselves are playing fast and loose

Spring as the study targets pesticides; specifically, the neonicotinoid insecticides that

conclusions as to the actual impact of the insec-

A beleaguered public may well listen more

ticides. Unfortunately, governments are rather

closely now than in the past to what GM food

more inclined to be premature in their reac-

producers have to say.

tions if sufficiently motivated. France, for one, has already banned a neonicotinoid as if the research published in April was unassailable.

In this dialogue, it should be acknowledged that simply adopting “better growing tech-

with the media, or trying to.

can allegedly cause wholesale honeybee

Traditionally, scientific journals offer advance

colony collapses.

notice to reporters so they can call indepen-

Here too, the research flaws were powerfully

dent experts and review previous studies.

exposed. It now appears that the calculations,

The authors of this study took a very different

based on erroneously low birth rates, do not

approach. Yes, they sent out the findings early,

reflect the rate at which honeybee colonies

but only to reporters willing to sign confidenti-

withstand the loss of individual members.

ality agreements that precluded neutral expert

“When we repeated the previous calculation

opinion until after the research was published.

with a realistic birth rate, the risk of colony col-

From a communications standpoint, it’s an

Silent Spring commemoration. The agricul-

(The reporters who agreed to this arrangement

lapse under pesticide exposure disappeared,”

ideal moment to make that case.

tural industry that Carson and her followers

fortunately re-filed their stories after the em-

said Dr. James Cresswell of the University of

bargo ended, adding in the expert commentary for balance.) This blatant over-reaching by the

Exeter, who called for “sound evidence…so governments can put together a proper plan

authors compromised the integrity of their

to protect [colonies] from any dangers that the

work as surely as any methodological oversight

chemicals pose.”

or prevarication.

niques and soil maintenance” is useful but

When governments and public opinion turn

hardly enough compared to the productive im-

on potentially discredited research, producers

pact of herbicides and the no-till farming they

need to be commensurately more aggressive.

enable – which, in turn, reduces erosion and,

They need to switch the narrative altogether to

because soil runoff is the single greatest pol-

show that safe GM crops are an environmental

lutant of our streams and waterways, likewise

survival tool; that, conversely, junk science is

acts as an effective anti-pollutant.

an environmental hazard.

After all, we are still living though a historic drought that has had a painfully obvious impact on agriculture. Next year promises to be worse as El Niño conditions are forecast to develop in the Pacific Ocean, heating water

That’s what the voice of reason sounds like

surfaces to such an extent that observers pre-

unencumbered by an agenda or premature

dict record-breaking temperatures in 2013.

Here, perhaps, is the greatest irony in any

targeted as Enemy Number One is now one of the most important and effective protectors of our environment. L Richard S. Levick, Esq., President and CEO of LEVICK, represents countries and companies in the highest-stakes global communications matters—from the Wall Street crisis and the Gulf oil spill to Guantanamo Bay and the Catholic Church.


Michael Lichtenstein

on Bankruptcy

Michael Lichtenstein discusses reorganization and liquidation for businesses big and small, referencing Penn Camera and American Airlines.

Financial Communications Litigation Corporate & Reputation Public Affairs Crisis


LEVICK Weekly - Sept 28 2012  

Robert Hibbert on Food Labeling Lawsuits GMOs & Junk Science: Apocalypse Soon If Not Now Michael Lichtenstein on Bankruptcy

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