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NFL Reaches Settlement on Race Norming, Concussion Benefits (1)

Oct. 21, 2021, 3:29 PMUpdated: Oct. 22, 2021, 1:42 PM

The NFL, class counsel for former players, and intervening retired Black players proposed a settlement of claims by retired Black players that they were harmed by the use of racial norms in assessing qualification for concussion benefits, in a federal court filing.

The settlement, which is subject to court approval, stems from a proposed class action by Black retired players who alleged the league deliberately manipulated their “cognitive function” test scores in a way that made it less likely they would receive benefits under a 2016 concussion settlement, worth an estimated $1 billion.

The agreement eliminates the use of race norming going forward and allows retired players affected by race norming to be reexamined or have their neuropsychological tests rescored.

The agreement was filed under seal Wednesday but unsealed later in the day by the U.S. District Court for the Eastern District of Pennsylvania.

The agreement “provides for a race-neutral evaluation process that will ensure diagnostic accuracy and fairness in the concussion settlement,” counsel for the league, Brad S. Karp with Paul, Weiss, Rifkind, Wharton & Garrison LLP told Bloomberg Industry Group. Karp is counsel for the NFL.

“We believe that the evaluation process contained in the agreement will have broad diagnostic applications, and welcome the opportunity to work with the greater neuropsychology community on the benefits of the cognitive evaluation process developed by the expert panel and set out in the agreement,” Karp said.

Counsel for the NFL settlement class said the agreement “will ensure that the NFL concussion settlement works fairly and equitably.”

The agreement was reached “with the guidance of a diverse group of medical experts and agreed to by the NFL and counsel for intervenors Kevin Henry and Najeh Davenport,” Chris Seeger with Seeger Weiss LLP told Bloomberg Industry Group.

“These changes accomplish what we promised: to eliminate the consideration of race in all the settlement’s diagnostic testing and provide Black former players retesting or rescoring of claims,” he said. “We look forward to presenting details of these changes to the Court, and engaging with former players about how this agreement will further the goal of providing them the care and support they deserve.”

Magistrate Judge David R. Strawbridge said in June that the agreement would provide relief to Black players harmed by the use of racial norms in assessing qualification for concussion benefits and eliminate the use of race norms going forward.

Named plaintiffs in the now-dismissed class action, Henry and Davenport, alleged that they had claims denied despite qualifying for benefits due to the league’s use of “race-normed scores.”

Davenport—who played seven years for the Green Bay Packers, Pittsburgh Steelers, and Indianapolis Colts—and Henry—who played eight years for the Steelers—said 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 isn’t 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, the players said.

Judge Anita B. Brody in March dismissed the suit as “an improper collateral attack” on the agreement, but ordered that the NFL and class counsel Seeger Weiss LLP—the original parties that drafted the settlement agreement—"seek to address the concerns relating to the race-norming issue” in front of Magistrate Judge David Strawbridge.

Brody in June granted the request of Davenport and Henry to take part in the mediation about the settlement agreement—which was drafted by the league and the ex-players’ lawyers at Seeger Weiss—one day after the NFL announced that it would end race-based assessments.

Counsel for Davenport and Henry applauded the agreement. “We believe that this is a huge win for Black retired players and look forward to discussing it more fully once permitted,” Cy Smith of Zuckerman Spaeder LLP told Bloomberg Industry Group.

Edward Stone Law PC and J.R. Wyatt Law PLLC also represent the plaintiffs. Troutman Pepper LLP also represents the NFL.

The case is In re Nat’l Football League Players’ Ass’n Injury Litig., E.D. Pa., No. 12-md-02323, 10/20/21.

(Story that ran Oct. 21 updated to add information about and link to released agreement in paragraphs three and four.)

To contact the reporter on this story: Peter Hayes in Washington at PHayes@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

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