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
NFL Was Forced into Fourth & Long Jason Maloni Originally Published on Levick Daily
Action Sports Photography / Shutterstock.com
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-
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
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.
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
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 Forbes.com
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
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
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
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
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 discusses reorganization and liquidation for businesses big and small, referencing Penn Camera and American Airlines.
Financial Communications Litigation Corporate & Reputation Public Affairs Crisis
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