Agreement Between NFL and the National Institute of Health Yields More Questions Than Answers

Back in November, I filed a Freedom of Information Act request with the National Institute of Health for all records regarding the NFL, concussions, and the Heads Up program, along with any Non-Disclosure Agreements (NDAs), publication rights, clauses, or agreements that require permission from the NFL before publishing. Essentially, I was chasing the very same story as Outside The Lines: could the NFL put limitations on their donations to the NIH?

Seteve Fainaru and Mark Fainaru-Wada of OTL reported that, yes, they can, and have. "The NFL, which spent years criticizing researchers who warned about the dangers of football-related head trauma, has backed out of one of the most ambitious studies yet on the relationship between football and brain disease, sources familiar with the project told Outside the Lines." However, the NFL flatly denied this, saying the NIH makes its own decisions.

Although parts of my FOIA request with the NIH are still being processed, I received the Memorandum of Understanding (MOU) between the Foundation for the National Institutes of Health (FNIH), a non-profit organization that essentially acts as a FOIA-proof intermediary between donors and researchers, and the National Institutes of Health Office of the Director for The Sports and Health Research Program, a really long title for the program bearing the NFL's logo which its donations created.

There's a lot of language in the MOU involving "mutual agreement" between the donors and NIH, but, as I read it, no direct language for the donors—in this case, the NFL—to influence research beyond any predetermined research plan. The only element the donor can directly influence are press releases regarding the research and its findings (not a small matter, but irrelevant to the OTL report). For all other matters, the donor must go through the FNIH (more on that later).

The MOU does state:

Reading that clause, it's clear the NFL is correct when it asserts that the NIH makes the funding decisions.

However, under the section regarding FNIH activities, the MOU reads:

Key parts: "FNIH is responsible for all interactions with the Donor(s) throughout the life of the Program…In addition, FNIH will use reasonable efforts to facilitate resolution of any Donor related issues that arise with respect to the applicable project."

This is incredibly vague—who knows what constitutes a "reasonable effort" or "resolution"—but does bring up an important possibility regarding OTL's report. This is pure speculation, but the MOU would allow for the NFL to express concern to the FNIH that their money would fund Dr. Robert Stern's research. At this point, it's entirely possible, from what we currently know, that the FNIH facilitated a "resolution" that involved the NIH funding Stern's research and the NFL funding other programs. After all, someone was always going to get funded by the NIH and others by the NFL. It's not entirely clear it matters to the NIH who funds what. (If my theory is correct, this would also raise the question of why the NFL would care so much which research program they actually funded if they were all going to get funded by someone regardless.)

The MOU does make one thing clear: all the relevant communications go between the FNIH and the NFL. Unfortunately, the FNIH is a non-profit organization, not a government entity, and therefore not subject to the Freedom of Information Act.