Did Disney's General Counsel Urge ESPN To Wimp Out On Concussion Doc?S

So why did ESPN end its relationship with Frontline less than two months before their co-reported, two-part documentary on the NFL and concussions was set to air? We know that ESPN president John Skipper found the trailer for Frontline's documentary to be "sensational" and "over the top." We know that Skipper had a "combative" lunch with Roger Goodell, in which the NFL commissioner reportedly expressed no little displeasure with the "direction" of the documentary. And we know that two days after that lunch, PBS was notified that it had to remove ESPN's logo from its website.

There is, however, one other story that's been making its way through ESPN's newsroom, dating back to last Friday. It goes that the ESPN and Frontline partnership collapsed after Disney's general counsel, Alan Braverman, got involved. (Disney is ESPN's parent company.) This could be wishful thinking on behalf of a justifiably angry OTL crew eager to see the ESPN bosses as something other than cringing corporate fraidy cats; it could be something more.

Here's what we know for sure: Braverman spoke with Bristol before ESPN pulled out of its partnership. We also know that he's absolutely the last person in the world the newsroom would want involved in such matters.

Braverman has a history as a sort of newsroom bogeyman. In 1994, ABC's news show Day One reported that tobacco companies were pumping extra nicotine into cigarettes during the manufacturing process to keep smokers hooked. The story was clean. Philip Morris, under attack for hiding the harmful effects of tobacco use, hated the piece and sued ABC for $10 billion. In a low moment for ABC and the news industry, the network 1) settled the case by giving Philip Morris $15 million in legal fees and 2) apologized on air. The network later refused to give out transcripts of the segment.

The narrative goes that Braverman—then the top lawyer for ABC/Cap Cities—went weak-kneed in the face of corporate trouble. His handling of the case was widely reported to be something of a mess, and the newsroom pointedly blamed him for ABC's caving so easily. As Jonathan Alter wrote at the time, the compromise that Braverman had brokered implied "that the American media may be moving from one extreme to the other—from underapologizing on stories that are fundamentally weak to overapologizing on stories that are fundamentally strong."

The Washington Post reported:

ABC's trial lawyers — the D.C. firm of Wilmer, Cutler & Pickering — expressed confidence that they could win the case. But ABC's in-house counsel, Alan Braverman, and other ABC executives became concerned as information emerged in discovery that seemed to undermine the show's assertions about spiking from outside suppliers. As early as the spring of 1995, Braverman was telling people that the broadcast had real "vulnerabilities," according to one source.

Braverman's misgivings infuriated many in the news division, especially at Day One. For months the network had been warding off Philip Morris's aggressive tactics, including subpoenas for the producers' home telephone records and credit card receipts in an effort to unmask Deep Cough. Braverman's concerns were seen as a kind of betrayal. Some people thought ABC chairman Murphy was looking to settle the case at almost any cost; they worried that Braverman's qualms could provide the rationale Murphy needed.

Mother Jones reported:

ABC had told the truth and possessed the resources to battle the suit. Still, the network decided it would rather quit than fight—and, apparently, had planned this decision from day one. Alan Braverman, chief counsel for Capital Cities/ABC, hired his old law firm, Wilmer, Cutler & Pickering, to pave the way for a settlement.

The lawyers handling ABC's defense, led by Stephen Sachs and Roger Witten, had little libel experience. While Philip Morris aggressively pursued its case, deposing the ABC staffers who worked on the story and looking for possible holes in their investigation, Wilmer, Cutler & Pickering was passive. For example, when it was disclosed that the judge selected to try the case, Theodore J. Markow, had a brother who was a plant manager for Philip Morris, ABC's legal team declined to request another judge.

And here's Newsweek:

Even after the apology, ABC corporate management was letting Philip Morris walk all over the news division. Staffers were stunned to see a gloating Philip Morris press release only minutes after the settlement; they'd been told that the deal barred such spin. But ABC general counsel Alan Braverman, who spent months keeping the news division in the dark (a charge he calls "absurd"), didn't exercise his right to protest.

This is the guy advising ESPN on the handling of a story with all sorts of Big Tobacco echoes. ESPN confirms that it consulted Disney on this decision—and Skipper confirms he spoke to Disney "lawyers"—but says that the decision was ESPN's alone. The network statement gave us this statement:

People at ESPN regularly reach out to Disney in the normal course of business and did so here to discuss the branding issue. As John Skipper has said publicly, it was his decision to remove our branding from the PBS documentary because we didn’t control the content, not because of a directive from others.

Know more about Braverman and the NFL? Let me know.