Retired Players Accuse NFL of Denying Concussion Settlement Benefits On Racial Basis

Two former National Football League players have filed a proposed class action lawsuit accusing the league of making it more difficult for Black former players to receive payouts from its concussion settlement.

The former players, Kevin Henry and Najeh Davenport, say the NFL is avoid paying head-injury claims under the football concussions settlement agreement by using a formula for determining qualifying diagnoses that is “explicitly and deliberately” discriminatory.

The former NFL players say they were deprived of their equal rights under the law because the settlement agreement was administered in such a way that Black Class Members “do not have the same right to compensation for injuries” as white Class Members, resulting in pain, suffering and embarrassment.

“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,” the class action lawsuit says.

The former NFL players maintain that as a result of this formula, former Black and white players receiving the same raw scores on tests intended to measure their current cognitive function are treated differently because it’s presumed the Black player actually suffered less impairment. Black players are thereby less likely to qualify for compensation under the settlement.

“The NFL’s actions were designed to, and did, make it far more difficult for Black retirees to receive benefits for the brain injuries which are a routine result of playing pro football,” the class action lawsuit says. 

However, even in cases where retired Black NFL players were not kept from receiving benefits, the league’s actions harmed proposed Class Members by subjecting them to intentional racial discrimination, the plaintiffs allege.

The class action complaint says Black players make up about 65% to 70% of the current NFL players, according to “several estimates.” It is believed a majority of the Settlement Class also is Black.

“The NFL’s scheme – executed through the League-sponsored Settlement Agreement – is particularly insidious because it presumes Black retirees to be less intelligent than their non-Black fellow retirees,” the class action lawsuit states.

The league treats the retired NFL players as “second-class citizens,” and worse, the complaint says, presumes “their pre-football cognitive abilities were lower than those of their White teammates.”

“In effect, the settlement, as it has been administered, has a white door and a Black door,” lead counsel told the New York Times. 

According to the New York Times report, the NFL’s concussion settlement has been criticized for several reasons, one of which is its cutoff date.

The settlement does not cover any players who die after April 22, 2015, and are found to have chronic traumatic encephalopathy, a disease linked to repeated impacts to the head.

Former NFL players also have been frustrated when the league challenged diagnoses players received before the settlement. 

Hundreds of players say their appeals have been denied after their claims were appealed by the NFL and audited by the settlement administrator.

The concussion settlement is uncapped thanks to a change made in 2014, but its value could be around $1 billion, according to the Wall Street Journal.

“They preached to us about not disrespecting the shield,” Davenport told the Wall Street Journal. “We come to find out that they can care less about us. … It makes you look at that shield differently.”

In addition to their proposed class action, the former NFL players have filed a motion encouraging the Court to clarify that the settlement doesn’t require or presume that retired players seeking compensation must be “subjected to a racially discriminatory cognitive testing regime.” 

With their proposed class action lawsuit, the plaintiffs are seeking a declaration that “the compelled or presumptive use of race-adjusted normative data to the detriment of Black Settlement Class members” is illegal under federal law; an award of damages to compensate the plaintiffs and Class Members “for pain, suffering, embarrassment and humiliation, but not including their lost benefits under the Agreement;” punitive damages; attorneys’ fees and expenses; and any other relief the Court deems appropriate.

They also demand a jury trial.

What do you think of the way NFL players are being evaluated? Tell us your thoughts in the comments section below.

The plaintiffs are represented by Cyril V. Smith, Aitan D. Goelman, Steven N. Herman, David A. Reiser, Ezra B. Marcus and Megan S. McKoy of Zuckerman Spaeder LLP; Edward S. Stone of Edward Stone Law PC; and J.R. Wyatt of JR Wyatt Law PLLC.

The NFL Players Football Concussions Settlement Class Action Lawsuit is Kevin Henry, et al. v. National Football League, et al., Case No. 2:20-cv-04165, in the U.S. District Court for the Eastern District of Pennsylvania.

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