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Black Ex-NFL Players Allowed Into Concussion Bias Mediation

June 4, 2021, 1:53 PM

Black retired NFL players who allege their concussion claims were evaluated differently than white players may intervene in mediation between the league and class counsel Seeger Weiss LLP to address concerns about the race-norming issue, a federal court in Pennsylvania ruled.

Judge Anita B. Brody of the U.S. District Court for the Eastern District of Pennsylvania granted the request of former players Najeh Davenport and Kevin Henry to take part in the mediation concerning the settlement agreement, which was drafted by the league and Seeger Weiss, one day after the NFL announced that it would end race-based assessments.

“The NFL has committed to eliminating racial norms from the settlement and replacing them with a new set of norms that ‘will be applied prospectively and retrospectively,’” Brody said.

“In light of this news, and the court’s understanding that intervention may facilitate the ongoing mediation process, permissive intervention is appropriate at this time,” she said.

Davenport and Henry sued the league Aug. 25, 2020, alleging it manipulated their “cognitive function” test scores to reduce their chances of receiving benefits under the $1 billion concussion settlement.

Brody dismissed their claims in March 2021 as “an improper collateral attack on the settlement agreement in the NFL multidistrict litigation,” but ordered that the NFL and Seeger Weiss address the issue in front of Magistrate Judge David Strawbridge.

Henry and Davenport allege that they had claims denied despite qualifying for benefits due to the league’s use of “race-normed scores.”

They allege that when being evaluated for neurocognitive impairment, Black former players were automatically assumed to have started with worse cognitive functioning than White former players.

They were therefore “presumed to have suffered less impairment” if receiving the same raw score on neuropsychological testing, making them less likely to qualify for compensation.

The complaint alleged that more than 12,000 settlement class members received baseline assessment testing and a majority of the settlement class members are Black.

Davenport played seven years for the Pittsburgh Steelers, Green Bay Packers, and Indianapolis Colts before retiring in 2008. Henry played for the Steelers from 1993 through the 2000 season.

Brody issued the order Thursday.

Zuckerman Spaeder LLP represents Davenport and Henry.

The case is In re Nat’l Football League Players’ Ass’n Injury Litig., E.D. Pa., No. 12-md-02323, 6/3/21.

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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