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NEWS AUGUST 31, 2020 ¦ 13

Black Ex-NFL Players Allege Bias
Implementing Concussion Settlement

By Max Mitchell

Two Black former professional football players
have sued the National Football League, al-
leging the organization has manipulated
the concussion settlement claims administration
process in a way that discriminates against Black
ex-players.
In a proposed class action lawsuit filed Tuesday
in the U.S. District Court for the Eastern District of
Pennsylvania, two former Pittsburgh Steelers allege
that the league has been improperly using race and
ethnicity information to undercut their cognitive
impairment claims. Specifically, the ex-players allege
the league has been using standards that “automati- Two former Pittsburgh Steelers allege that the National
cally assumed” Black players have a lower baseline
cognitive ability from which to assess the claimed Football League has been improperly using race
cognitive damage the players allegedly sustained
and ethnicity information to undercut their cognitive
impairment claims.

while playing professionally. the NFL regarding the settlement, did not immedi-
The suit surfaced on Law.com’s Legal Radar. ately return a call for comment.
Attorneys from Zuckerman Spaeder filed the In an emailed statement, a spokesman for the
lawsuit on behalf of former Steeler Kevin Henry league said the lawsuit is “entirely misguided.”
and Najeh Davenport, who played primarily for The settlement agreement “always contemplated the
the Green Bay Packers before also playing for the use of recognized statistical techniques to account for
Steelers and other teams. The 15-page complaint in demographic differences such as age, education and
Henry v. National Football League raises one count race,” spokesman Brian McCarthy said. “The point
of deprivation of equal rights. of such adjustments - in contrast to the Complaint’s
“The NFL’s enforcement of the settlement agree- claims - is to seek to ensure that individuals are treated
ment treats the league’s Black retirees as second-class fairly and compared against comparable groups.”
citizens, or worse, by presuming that their pre- The statement further said the use of those adjust-
football cognitive abilities were lower than those ments are not required, but are left to the discretion
of their white teammates. This presumption of in- of the clinicians administering the tests.
feriority is then used to explain away and to avoid “The NFL continues to be fully committed to pay-
paying compensation for Black retirees’ post-foot- ing all legitimate claims and providing the important
ball neurocognitive shortfalls,” the complaint said. benefits that our retired players and their families
“In this way, the NFL has ensured that fewer Black deserve,” McCarthy said.
retirees will receive benefits under the settlement The suit seeks to block the NFL from using race
agreement.” as a basis for determining the settlement funds, and
No attorney has yet entered an appearance on be- for the league to allow players to be retested, or com-
half of the NFL. Brad Karp of Paul, Weiss, Rifkind, pensated for what they would have received had race
Wharton & Garrison, who has been representing
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