Two retired Black players have sued the National Football League claiming that the NFL deliberately manipulated ex-players’ “cognitive function” test scores in a way that made it less likely that Black ex-players would receive benefits under the landmark 2016 concussion settlement.
The lawsuit was filed in federal court in Philadelphia by Kevin Henry, who played seven years for the Green Bay Packers, Pittsburgh Steelers and Indianapolis Colts, and Najeh Davenport, who played eight years for the Pittsburgh Steelers.
The suit claims that the NFL violated federal law in processing claims under the settlement by using different sets of data for Black and white players. This “race-norming,” which the suit says is not required by the NFL-sponsored settlement agreement, has made it much more difficult for Black retirees to receive compensation for cognitive impairment under the settlement – undercutting one of the main purposes of the deal, according to the complaint.
The two players have asked the federal court overseeing the settlement to make clear that the NFL cannot use harmful “race-normed” scores when assessing eligibility for retiree benefits. In a separate filing, they have asked that the NFL pay damages to Black ex-players who were subjected to the illegal practice.
“The NFL’s administration of the settlement created a ‘Black’ door and a ‘White’ door for benefits, in which former players with identical test scores get different treatment – solely on the basis of race,” said Cy Smith, a Zuckerman Spaeder LLP partner and lead counsel for the players. “This approach was not required by the settlement and the NFL is fully aware of its discriminatory impact on Black players. The NFL has a choice to make: live up to its word and treat Black players like their lives matter, or continue pushing them aside.”
“The lawsuit filed today is entirely misguided,” NFL spokesman Brian McCarthy told the Wall Street Journal in a statement. The statement said the agreement “always contemplated the use of recognized statistical techniques to account for demographic differences such as age, education and race.” He said such adjustments are meant to ensure that individuals are treated fairly.
The NFL’s use of race-norming is explained in the lawsuit: “When being evaluated for the Qualifying Diagnoses of Neurocognitive Impairment, Black former players are automatically assumed (through a statistical manipulation called “race-norming”) to have started with worse cognitive functioning than White former players. As a result, if a Black former player and a White former player receive the exact same scores on a battery of tests designed to measure their current cognitive functioning, the Black player is presumed to have suffered less impairment.
The complaint alleges that NFL’s actions “were designed to, and did, make it far more difficult for Black retirees to receive benefits.”
Christopher Seeger, of Seeger Weiss law firm, counsel for the class of plaintiffs in the settlement, said in a statement that his team is not aware of any evidence of racial bias but will further investigate the issue.
The fund has paid out more than $700 million thus far.
The lawsuit can be viewed here (pdf).
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