Lawsuit: NFL Concussion Payouts Discriminate Against Black Ex-Players

A lawsuit filed Tuesday by lawyers for two ex-NFL players alleges the league has “explicitly and deliberately” discriminated against former Black players and made it more difficult for them to qualify for payouts from the concussion settlement that was reached in 2013.

As part of the settlement, players are allowed to file dementia-related claims in order to qualify for payouts worth as much as $3 million. The tests which are used to determine dementia in the litigation allow doctors to use different baseline standards for Black and white retired players, according to the lawsuit filed on behalf of former running back Najeh Davenport and ex-defensive end Kevin Henry, both of whom are Black.

“Black former players have been automatically assumed, through a statistical manipulation called ‘race-norming,’ to have started with worse cognitive functioning than white former players,” the lawyers wrote. “The use of a deliberate, explicit, racial classification — with Black and white former players automatically subjected to different standards — is a blatant violation of the law.”

The lawsuit seeks to make the dementia tests race-neutral going forward and also asks that the previous scores on Black players’ neurocognitive exams be recalculated using an even scale that makes them equal with white players.

The NFL called the lawsuit “entirely misguided” in a statement.

“The settlement program … 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,” said league spokesman Brian McCarthy. “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.”