A pair of black retired NFL players have filed a federal lawsuit claiming the league’s $1billion concussion settlement discriminates against African Americans because it uses an evaluation process that presumes they had lower cognitive function before their head injuries than white claimants.
Lawyers on behalf of former Pittsburgh Steelers defensive lineman Kevin Henry and ex-Green Bay Packers fullback Najeh Davenport filed the lawsuit in the US District Court for the Eastern District of Pennsylvania on Tuesday in hopes of establishing on class-action lawsuit on behalf of other black claimants.
The filing comes in response to the NFL’s $1 billion concussion settlement that resolved thousands of lawsuits from former players who accused the league of hiding the risks of repeated concussions. Retired NFL players can receive as much as $3 million if they suffered from moderate dementia, for instance, but most claims are for far less money.
The payment plan for retirees suffering from cognitive decline was agreed to by the owners and players in 2013, as was the assessment criteria.
The players say the NFL is basing compensation for head trauma claims on a set of criteria that ‘explicitly and deliberately discriminates on the basis of race,’ according to the filing.
According to The Wall Street Journal, the practice of using race-based models in assessing settlement payouts is not unusual.
Tuesday’s filing includes a motion to prevent the use of race adjustments on former players as well as a discrimination complaint that seeks unspecified damages.
An NFL spokesman did not immediately respond to the Daily Mail’s request for comment.
According to the complaint, Davenport and Henry were among the former players who discovered that their settlements were subject to adjustments that factored in their race, age, and education while judging cognitive decline.
‘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,’ reads the filing. ‘As a result, if a Black former player and a White former player receive the exact same raw scores on a battery of tests designed to measure their current cognitive functioning, the Black player is presumed to have suffered less impairment, and he is therefore less likely to qualify for compensation.’
The concussion settlement has been a legal battlefield for former players and the NFL, which has accused claimants of committing widespread fraud with the help of doctors and lawyers. Lawyers for the claimants, meanwhile, say the NFL has done a poor job of administrating payments to players.
‘Although racial categorizations can be arbitrary, several estimates place the proportion of current pro football players who are Black at 65-70%’ reads the filing. ‘On information and belief, a majority of the Settlement Class can also be identified as Black. The NFL’s scheme – executed through the League-sponsored Settlement Agreement – is particularly insidious because it presumes Black retirees to be less intelligent than their non-Black fellow retirees.
‘In this way, the NFL has ensured that fewer Black retirees will receive benefits under the Settlement Agreement,’ the filing continues. ‘Yet even in cases where Black retirees surmount the obstacle erected by the NFL, and receive benefits, those retirees are subjected to the same discriminatory acts by the League, through the manipulation of their cognitive testing scores.’
In the case of Davenport, the former University of Miami star initially received a notice saying he was entitled to a certain monetary award from the claims adjustor after being tested on a standard that did not adjust for race. However, according to the filing, the NFL appealed the claim, arguing that he ‘did not demonstrate the requisite cognitive impairment’ based on the standards set for black men of his age.
Smith’s claim was also denied based on similar criteria, according to the lawsuit.
Davenport, 41, and Smith, 51, played in the NFL for seven and eight years, respectively, and both claim to have suffered multiple concussions.
Now the two also claim they’re suffering cognitive decline in the form of memory and speaking impairment.
‘He would go out and forget why he went out; he would forget conversations…that would trigger arguments, Kevin Henry’s his wife, Pamula Brack-Henry, told The Wall Street Journal.
Henry was particularly upset that the NFL could discriminate against black retired players while publicly voicing support for the Black Lives Matter movement, as commissioner Roger Goodell has done since the police killing of George Floyd on May 25 in Minneapolis.
‘As soon as the season starts, the first thing they’re going to be putting out is ‘Black Lives Matter, Black Lives Matter,’ Henry said. ‘I want white guys to get what they’re due and also Black guys, because we played together, we battled together, we all laced ’em up together…I want to be, I guess, the person who has to shed the light on this.’
To date, the NFL has paid out nearly $800 million across 20,555 claims, of which 3,073 have been claimed, according to NFLconcussionsettlement.com.
A national champion in college at the University of Miami Davenport rushed for 1,819 yards and 13 touchdowns over his seven-year career, which ended in 2008 with the Indianapolis Colts.
He is perhaps best known for a 2002 incident in which a female student at Barry University in Miami claimed she awoke to find Davenport defecating into a laundry hamper in her closet. Charges were dropped as part of a plea bargain that required him to perform 100 hours of community service, but he has maintained his innocence.
A former Mississippi State star, Henry’s NFL career began in 1993 and ended in 2000.