NFL Sued for Using Race-Based Testing That Limits Concussion Benefits for Black Retirees

In a lawsuit filed today in federal court in Philadelphia, two Black NFL retirees, Kevin Henry and Najeh Davenport, claim that the NFL deliberately manipulated ex-players’ “cognitive function” test scores in a way that made it less likely that Black ex-players would receive benefits under the landmark 2016 concussion settlement.  

Davenport, who played seven years for the Green Bay Packers, Pittsburgh Steelers and Indianapolis Colts, and Henry, who played 8 years for the Pittsburgh 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 two players have asked the federal court overseeing the settlement to make clear that the NFL cannot use harmful “race-normed” scores when assessing eligibility for retiree benefits.  In a separate filing, they have asked that the NFL pay damages to Black ex-players who were subjected to the illegal practice. 

“The NFL’s administration of the settlement created a ‘Black’ door and a ‘White’ door for benefits, in which former players with identical test scores get different treatment – solely on the basis of race,” said Cy Smith, a Zuckerman Spaeder LLP partner and lead counsel for the players.  “This approach was not required by the settlement and the NFL is fully aware of its discriminatory impact on Black players.  The NFL has a choice to make:  live up to its word and treat Black players like their lives matter, or continue pushing them aside.”

The NFL’s use of race-norming is explained in the lawsuit: “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. As a result, if a Black former player and a White former player receive the exact same scores on a battery of tests designed to measure their current cognitive functioning, the Black player is presumed to have suffered less impairment,…The NFL’s actions were designed to, and did, make it far more difficult for Black retirees to receive benefits…”

The lawsuit can be viewed here (pdf), and the motion for relief can be viewed here (pdf).

The retired players are represented by Cy Smith, Aitan Goelman, Steve Herman, David Reiser, Ezra Marcus and Megan McKoy of Zuckerman Spaeder in Baltimore and Washington, D.C., as well as Justin Wyatt of J.R. Wyatt Law and Edward Stone of Edward Stone Law, both in New York.  The existing NFL concussion case is Kevin Turner, et al. v. National Football League, et al., No. 2:12-md-02323-AB (E.D. Pa.), and the new case is Kevin Henry, et al. v. National Football League, et al. (E.D. Pa.).