Black football players are fighting for a fair seat at the settlement table as mediations between the National Football League (NFL) and injured players continue. The cognitive test that uses separate scoring for white and Black athletes has allegedly made it harder for Black players to access payouts in the landmark concussion settlement.
Former Pittsburgh Steelers players Kevin Henry and Najeh Davenport — who are both Black — filed a motion last week in the Eastern District of Pennsylvania requesting to intervene in the mediation between the NFL and the settling players.
Taking aim at the lawyers for the settling Class of players, they said a neuropsychological test that sets Black people at a lower starting point has made it harder for Black players to prove cognitive decline in order to access settlement funds. The separate scoring “explicitly and deliberately” discriminated against possibly thousands of Black NFL players, according to The New York Times.
On Monday, the lawyers for the settling class Seeger Weiss said they’d been wrongly accused of being unconcerned about the issue, and that there was no need to allow Henry and Davenport to be involved in discussions before the court.
The use of demographic norms when converting raw scores is “standard practice by neuropsychologists,” the firm’s founding partner Christopher Seeger said, adding that no player’s claim had been rejected solely because of the cognitive tests.
“Demographic adjustments to neuropsychological test results have been used for decades, and they reduce the likelihood of misdiagnosing cognitive impairment in minority populations,” he said.
However, Cy Smith, counsel for Henry and Davenport, told Law360 this response showed exactly “why Black players need a seat at the settlement table.”
Class counsel doesn’t deny it’s been aware of race-norming’s discriminatory effects since 2018 or that clinicians routinely were pressured to use separate norms for Black players, Smith told Law360.
He also said Seeger Weiss had refused to supply data on the qualification rates for Black players versus white players.
Seeger’s response reinforced his concern about how large numbers of Black players who never qualified or submitted claims because of race-norming would fare in any mediation, he said.
“Black players are asking, how can their rights be protected by someone who helped create the problem and then ignored it for years?” Smith said. “The only answer is to give Black players their own voice in these settlement talks.”
Henry and Davenport had also filed a proposed class action lawsuit over the issue, but that was tossed last week by U.S. District Judge Anita Brody, the federal judge who presided over the concussion case and is overseeing administration of the settlement.
Despite this, she ordered the NFL and Seeger Weiss to “address the concerns relating to race-norming.”
The landmark settlement applies to former players or the families of players who suffered from degenerative brain conditions associated with brain injuries sustained while playing football, such as Alzheimer’s and Parkinson’s disease and dementia.
More than $836 million in claims had been approved as of March 1, according to the settlement website. A total of 20,557 former players or their families have registered as settlement Class Members.
What do you think of the testing standard for players seeking money from the settlement? Is it fair? Let us know in the comments.
The concussion settlement class is represented by Christopher Seeger of Seeger Weiss LLP.
Henry and Davenport are represented by Cyril V. Smith, Aitan D. Goelman and Ezra B. Marcus of Zuckerman Spaeder LLP; Edward S. Stone of Edward Stone Law PC; and J.R. Wyatt of J.R. Wyatt Law PLLC.
The NFL Concussion Settlement Class Action Lawsuits are In re: National Football League Players’ Concussion Injury Litigation, Case No. 2:12-md-02323, and Henry et al. v. NFL, Case No. 2:20-cv-04165, both in the U.S. District Court for the Eastern District of Pennsylvania.
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