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Black Ex-NFL Players Allege Concussion Benefit Bias (1)

Aug. 25, 2020, 5:41 PM; Updated: Aug. 26, 2020, 11:32 AM

The NFL was hit with a proposed class action Tuesday by Black retired players who allege the league deliberately manipulated their “cognitive function” test scores in a way that made it less likely they would receive benefits under the 2016 concussion settlement, worth an estimated $1 billion.

Named plaintiffs Kevin Henry and Najeh Davenport allege 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—say 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 is not 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 say.

In 2017, two years after the settlement agreement went into effect, the NFL and class counsel developed a Clinician’s Interpretation Guide for the NFL Baseline Assessment Program that urges clinicians to “correct” test scores based on a retired player’s race, the complaint alleges.

A spokesman for the NFL said the suit “is entirely misguided.”

The settlement program “was the result of arm’s-length, comprehensive negotiations between the NFL and class counsel, was approved by the federal courts after a searching review of its fairness, and always contemplated the use of recognized statistical techniques to account for demographic differences such as age, education and race,” Brian McCarthy told Bloomberg Law.

“The point of such adjustments—in contrast to the complaint’s claims—is to seek to ensure that individuals are treated fairly and compared against comparable groups. But the settlement agreement does not require the use of any particular adjustments, and instead leaves their use to the sound discretion of the independent clinicians administering the tests in any particular case,” he said.

Cause of Action: Civil Rights Act 42 U.S.C. §1981.

Relief: Declaratory relief, damages, attorneys’ fees and costs.

Potential Class Size: The complaint alleges the proposed class is numerous because more than 12,000 settlement class members have received BAP testing and a majority of the settlement class members are Black.

Attorneys: Zuckerman Spaeder LLP, Edward Stone Law PC and JR Wyatt Law PLLC represent the plaintiffs.

The case is Henry v. Nat’l Football League, E.D. Pa., No. 20-cv-04165, complaint filed 8/25/20.

(Updates Aug. 25 story to add NFL statement)

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; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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