NFL Seeks to Toss Black Players’ Concussion Benefit Bias Claims

Nov. 3, 2020, 4:38 PM

Claims the NFL manipulated Black retired players’ “cognitive function” test scores to reduce their chances of receiving benefits under a $1 billion concussion settlement should be dismissed because the adjustments correct for, rather than perpetrate, racial bias, the league says in a filing in the Eastern District of Pennsylvania.

Former Pittsburgh Steelers players Kevin Henry and Najeh Davenport allege in their civil rights class suit that they had claims denied despite qualifying for benefits because of the league’s use of “race-normed scores” in the 2016 settlement.

But the suit fails because the complaint doesn’t show discriminatory intent by the National Football League, it says in the filing in the U.S. District Court for the Eastern District of Pennsylvania.

The players also failed to show that race was the “but for” cause of the their alleged injuries—the denial of compensation—because the complaint doesn’t allege that Henry would have merited a qualifying diagnosis if race-based demographic adjustments hadn’t been used, the league says.

And Davenport’s claim wasn’t denied by the claims administrator, but was only remanded by a special master for further consideration, the league says.

The settlement agreement provides that “demographic—including race-based—normative adjustments” may be used by independent neuropsychologists in evaluating retired players, according to the NFL.

No objection was ever raised to the potential use of the race-based adjustments during consideration of the settlement, the league says.

By not objecting or appealing on the basis of these features, all of the settlement class members “tacitly agreed to them,” it says.

The suit is also barred as an improper collateral attack on the terms of a judicially-approved settlement agreement, according to the NFL.

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

They therefore are “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 alleges more than 12,000 settlement class members have received baseline assessment testing and a majority of the settlement class members are Black.

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

Judge Anita B. Brody is assigned to the case.

Zuckerman Spaeder LLP, Edward Stone Law PC and JR Wyatt Law PLLC represent the plaintiffs. Paul, Weiss, Rifkind, Wharton & Garrison LLP, and Troutman Pepper LLP represent the NFL.

The case is Henry v. Nat’l Football League, E.D. Pa., No. 20-cv-04165, 11/2/20.

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

To contact the editor responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com

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