The NFL’s concussion settlement has created plenty of unfortunate headlines over the years. The latest headline, if ultimately supported by the evidence, will be the most unfortunate yet.
On Tuesday, former NFL players Kevin Henry and Najeh Davenport filed a class action lawsuit alleging that the NFL deliberately manipulated “cognitive function” test scores to make it less likely that Black players would receive benefits under the concussion settlement.
“The NFL’s administration of the settlement created a ‘Black’ door and a ‘White’ door for benefits, in which former players with identical test scores get different treatment -- solely on the basis of race,” Cy Smith, lead counsel for the players, said in a press release. “This approach was not required by the settlement and the NFL is fully aware of its discriminatory impact on Black players. The NFL has a choice to make: live up to its word and treat Black players like their lives matter, or continue pushing them aside.”
The lawsuit alleges that the process for assessing cognitive function of former players seeking benefits uses “race-norming,” which assumes that Black players start with lower cognitive function. As a result, a Black player who has played professional football, and who has potentially suffered cognitive decline because of it, is presumed to have experienced less decline as a result of playing football -- and thus is less likely to be eligible for compensation.
The complaint contends that the NFL “expected and intended this result” through the “drafting, interpreting, and enforcing” of the settlement. “Simply stated,” the initial filing says at page 3, “the League sought to reduce the total cost of benefits paid to the Settlement Class, by greatly reducing benefits to the Black retirees who today make up a majority of both the Settlement Class and the NFL’s workforce.”
The NFL calls the lawsuit “entirely misguided,” and that the settlement program for former players “was the result of arm’s-length, comprehensive negotiations between the NFL and Class Counsel, was approved by the federal courts after a searching review of its fairness, and always contemplated the use of recognized statistical techniques to account for demographic differences such as age, education and race.” In other words, the NFL is saying that any factors used to account for demographic differences were part of the elaborate process that started with negotiating a settlement agreement and then securing judicial approval of it.
“The point of such adjustments -- in contrast to the Complaint’s claims -- is to seek to ensure that individuals are treated fairly and compared against comparable groups,” the league added in a statement provided to PFT. “But the Settlement Agreement does not require the use of any particular adjustments, and instead leaves their use to the sound discretion of the independent clinicians administering the tests in any particular case. The NFL continues to be fully committed to paying all legitimate claims and providing the important benefits that our retired players and their families deserve.”
The NFL doesn’t administer the individual claims; others are responsible for deciding how the players are evaluated and whether and to what extent benefits are paid.
That said, the lawsuit has been filed. The NFL will now have to make any and all appropriate arguments aimed at proving that there is no racial bias in the process of awarding claims, and that (if there is) the NFL is not responsible for it.