PHILADELPHIA – A federal discrimination case brought by two retired NFL players against the league, claiming that it manipulated cognitive function data to make it less likely Black players would receive proceeds from the 2016 concussion settlement, has been resolved.
Kevin Henry and Najeh Davenport first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Aug. 20, 2020 versus the National Football League, 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, posited 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 concussion settlement terms, but is used at the discretion of the testing physicians.
Henry and Davenport asserted that this practice, known as “race-norming”, 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.
On Nov. 2, 2020, 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, 2021 – 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.
The same day as Brody’s ruling, Smith filed an appeal to the Third Circuit.
Brody had taken the unusual step of asking for a report on the issue of race-norming. Retired Black players hoped it would include a racially-based breakdown of the nearly $800 million in payouts distributed so far, as they were fearful that data would otherwise never come to light.
Christopher Seeger, lead counsel for the retired NFL players who negotiated the 2013 settlement with the NFL, initially said in March 2021 that he had not seen any evidence of racial bias in the administration of the settlement fund. However, Seeger later changed course, apologizing for his earlier statement.
“I am sorry for the pain this episode has caused Black former players and their families. Ultimately, this settlement only works if former players believe in it, and my goal is to regain their trust and ensure the NFL is fully held to account,” Seeger said in a statement.
Currently, the NFL concussion settlement has paid nearly $1 billion to retired players for neurocognitive problems connected to concussions, as a part of the ongoing 65-year settlement plan.
Over 50 percent of all NFL retirees are Black, per lawyers involved in the litigation.
Retired NFL players may also seek compensation if they have been diagnosed with Alzheimer’s disease and a select group of other illnesses.
In June 2021, the NFL announced it would stop the practice of race-norming and examine past determinations for examples of racial bias.
“We are committed to eliminating race-based norms in the program and more broadly in the neuropsychological community. The parties to the settlement have been working with the magistrate judge and have assembled the leading members of the neuropsychological industry to help identify alternative testing techniques,” NFL spokesman Brian McCarthy said in a statement, at the time.
“Everyone agrees race-based norms should be replaced, but no off-the-shelf alternative exists, and that’s why these experts are working to solve this decades-old issue. The replacement norms will be applied prospectively and retrospectively for those players who otherwise would have qualified for an award but for the application of race-based norms.”
The NFL added it would create a new testing methodology, formed by a panel of neuropsychologists that includes two women and three Black physicians.
UPDATE
After the case was stayed and a proposed settlement agreement was reached in January 2022 and reviewed by the Third Circuit in the weeks to follow, plaintiff counsel filed a stipulation to dismiss the appeal of the case on March 30.
“Pursuant to Federal Rule of Appellate Procedure 42(b) and the parties’ settlement, appellants Kevin Henry and Najeh Davenport, and appellees National Football League and NFL Properties, LLC do hereby stipulate and agree that appellants’ appeal is voluntarily dismissed, with each side to bear its own costs and attorney’s fees,” the stipulation said.
In accordance with the agreement of the parties in the above-captioned case, the Third Circuit summarily dismissed the case pursuant to Federal Rule of Appellate Procedure 42(b), with each party to bear their own cost.
The plaintiffs were represented by Aitan D. Goelman, Ezra B. Marcus, 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 were 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 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-04165
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com