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14 ¦ AUGUST 31, 2020 NEWS

¦ From BLACK on PAGE 13 In Henry’s case, after his claim
not been improperly factored into was denied, he was reevalu-
the assessment. ated using a “Full Demographic
“The NFL’s administration of Model,” which included taking
the settlement created a ‘Black’ In a proposed class action age, education, race/ethnicity and
door and a ‘white’ door for bene- lawsuit filed Tuesday in gender into account, and ulti-
fits, in which former players with the U.S. District Court for mately found not to have suffered
identical test scores get different the Eastern District of qualifying cognitive damages in
treatment—solely on the basis of Pennsylvania, two former any category. The complaint said

race,” Zuckerman Spaeder part- Pittsburgh Steelers allege that, in explaining the results,
ner Cy Smith, who is lead counsel that the league has been the clinician wrote that “different
for the players, said in a press improperly using race and normative comparison [i.e., race]
statement. “This approach was groups were used at the previous
not required by the settlement ethnicity information to evaluation, which also may ac-
and the NFL is fully aware of its undercut their cognitive count for some discrepancies in
discriminatory impact on Black the standard scores and meeting
impairment claims.

players. The NFL has a choice impairment criteria.”
to make: live up to its word and Davenport’s efforts to obtain
treat Black players like their lives settlement funds fared similarly,
matter, or continue pushing them with the NFL appealing the initial
aside.” assessment, and ultimately saying that, based on its
The lawsuit is the latest in a slew of challenges the independent recalculation of his score and apply-
landmark, uncapped settlement—expected to top ing “the industry standard Heaton [i.e. race-based]
$1 billion—has faced since it was reached five years norms,” Davenport did not show the requisite im-
ago. Along with direct appeals regarding the accord, pairment, the complaint said.
there has been disputes over attorney fees, loans to “Regardless of variations in the NFL’s language,
players, leadership positions, and fights about how the outcome has been the same: Black retirees’ scores
the settlement should be implemented. have been artificially manipulated, and the NFL has
Henry and Davenport’s lawsuit focuses more on successfully challenged testing which does not use
the way the NFL has been evaluating the claims, those race-based “norms,’” the complaint said.
saying that the organization has been improperly re- According to the complaint, as of the beginning of
lying on language in the settlement agreement to use the month, there were more than 20,000 registered
broad race and ethnic demographics in determining class members and nearly 1,200 payable monetary
the settlement awards for layers. awards. The suit also notes that the majority of the
According to the complaint, both Henry and settlement class is Black.
Davenport suffered numerous concussions during Sign up for Law.com’s Legal Radar to keep up with
the years they played for the NFL, and both suffer the latest news and lawsuits in a free, personalized
from depression, memory loss and headaches as a news feed. Track class actions and who’s getting the
result, while Davenport, who allegedly suffered an work by industry, practice area, law firm, company
orbital fracture during one game, also has difficulty and region.
performing household chores. ¦

Both players sought claims under the settlement Max Mitchell is a reporter with The Legal Intel-
agreement, and were evaluated regarding their ligencer, focusing on litigation in Pennsylvania
claimed neurocognitive damage, the complaint said. with a specific emphasis on Philadelphia courts.
Both received scores of Level 1.5 and Level 2 in sev- Follow him on Twitter @MMitchellTLI. His email
eral categories. is [email protected].

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