PHILADELPHIA – A diverted federal discrimination case brought by two retired National Football League players against the organization – claiming that it manipulated cognitive function data to make it less likely Black players would receive proceeds from the 2016 concussion settlement – will now be heard before the U.S. Court of Appeals for the Third Circuit.
Kevin Henry and Najeh Davenport first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Aug. 20 versus the NFL, of New York, N.Y.
Henry, who played eight years for the Pittsburgh Steelers, and Davenport, who played seven years for the Green Bay Packers, Pittsburgh Steelers and Indianapolis Colts claimed that the NFL violated federal law in handling claims under the concussion settlement, by using different sets of cognitive function data for Black and White players.
This data, according to the plaintiffs, posits that Black players begin with worse cognitive function than White players do, thus making it more difficult to show evidence of cognitive damages for Black players.
Such methodology is not required, according to the settlement terms, but is used at the discretion of the testing physicians.
The plaintiffs asserted that this practice, known as “race-norming,” has made it far more difficult for retired NFL players who are Black to receive payouts for cognitive impairment under the terms of the concussion settlement, detracting from one of the main purposes of the agreement.
The plaintiffs sought the ending of “race-norming” when assessing cognitive impairment data among retired Black and White players and financial restitution to Black players who have been discriminated against by this practice.
On Nov. 2, the NFL filed a motion to dismiss the case for failure to state a claim.
However, U.S. District Court for the Eastern District of Pennsylvania Judge Anita B. Brody, the presiding judge over the NFL’s concussion settlement, granted the league’s dismissal motion at a hearing on March 8 – and further ruled that lead plaintiff counsel from the original settlement, the law firm Seeger Weiss, and the NFL were to instead participate in mediation to resolve their issues pertaining to the practice of “race-norming.”
That mediation would seem to exclude the Black players who sued the league.
NFL spokesperson Brian McCartney stated the league “was pleased with the court’s decision” and expects that the mediation will address the judge’s concerns about the issue.
An attorney for the plaintiffs felt very differently.
“We are deeply concerned that the Court’s proposed solution is to order the very parties who created this discriminatory system to negotiate a fix. The class of Black former players whom we represent must have a seat at the table and a transparent process,” Cyril V. Smith, a member of plaintiff counsel, said.
The same day as Brody’s ruling, Smith filed an appeal to the Third Circuit.
Currently, the NFL concussion settlement has paid more than $765 million to retired players for neurocognitive problems connected to concussions, including about $335 million for dementia. Payments are expected to exceed $1 billion, long before the 65-year settlement plan ends.
For counts of deprivation of equal rights under the law, the plaintiffs are seeking a declaration that the complained-of conduct is illegal under federal law, compensatory damages for pain, suffering, embarrassment and humiliation, but not including their lost benefits under the agreement, punitive damages, attorneys’ fees and expenses under statutory or common law, such other relief at law or in equity that the Court may deem just and proper, and a trial by jury.
The plaintiffs are represented by Aitan D. Goelman, Ezra B. Marcus, Megan S. McKoy, Steven N. Herman and Cyril V. Smith of Zuckerman Spaeder in Washington, D.C. and Baltimore, Md., plus Edward S. Stone of Edward S. Stone Law and J.R. Wyatt Jr. of Wyatt Law, both in New York, N.Y.
The defendants are represented by Brad S. Karp, Bruce Birenboim, Claudia L. Hammerman and Lynn B. Bayard of Paul Weiss Rifkind Wharton & Garrison in New York, N.Y., plus Sean P. Fahey and Logan Anderson of Troutman Pepper Hamilton Sanders, in Philadelphia.
U.S. Court of Appeals for the Third Circuit case 21-1434
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-01465
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com