Ex-NFL Players Allege Racial Discrimination in Concussion Settlement Lawsuit

Joseph Zucker@@JosephZuckerFeatured ColumnistAugust 25, 2020

Football with 100 year logo during an NFL football game at Ford Field in Detroit, Sunday, Dec. 29, 2019. (AP Photo/Rick Osentoski)
Rick Osentoski/Associated Press

Former NFL players Kevin Henry and Najeh Davenport filed a federal lawsuit alleging racial discrimination in the NFL's concussion settlement, according to the Wall Street Journal's Louise Radnofsky and Andrew Beaton

The lawsuit alleges some Black players have been unable to receive financial compensation due to "an evaluation process that assumed they had lower cognitive functioning when healthy than white players."

"The players say the NFL has been paying head-injury claims under the settlement, which took effect in 2017, using a formula that 'explicitly and deliberately discriminates on the basis of race,'" Radnofsky and Beaton wrote. "When Black former players are evaluated for a qualifying diagnosis of neurocognitive impairment, they are 'automatically assumed (through a statistical manipulation called "race-norming") to have started with worse cognitive functioning than White former players,' according to the complaint filed Tuesday in the U.S. District Court for the Eastern District of Pennsylvania.

"'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.'"

PBS aired a documentary, League of Denial, in October 2013 that exposed the potential long-term health effects of playing football, including CTE, a brain disease caused by repeated head trauma. The documentary also contended the league was aware of how serious the problem was but didn't convey the severity to the players. 

That August, the NFL settled a lawsuit with former players, pledging to contribute at least $765 million to a fund that would pay ex-players directly and contribute to medical exams and research, among other things. U.S. District Judge Court Judge Anita B. Brody finalized the settlement in April 2015, with the NFL on the hook for as much as $1 billion.

The lawsuit filed by Henry and Davenport isn't the first point of contention centered around the settlement.

ESPN's Mark Fainaru-Wada reported in March 2017 that some former players and their families were concerned that attorney fees would significantly diminish their final compensation. He added that a "virtual cottage industry of opportunist lawyers, doctors, predatory lenders and other professionals" had emerged to capitalize on the case.

Brett Murphy and Gus Garcia-Roberts of USA Today detailed the problems further. In one example, the family of former Philadelphia Eagles halfback Ralph Goldston saw what was originally determined to be a $160,000 payout dwindle to negative-$740 because the court kept some of the money for Goldston's medical bills.