NFL Ducks Suit Over Race-Minded Dementia Standards

A federal judge threw out a case that says demographic data lets the NFL assume Black athletes would come to the league with already low brain function.

PHILADELPHIA (CN) — The NFL need not go to trial over its consideration of racial norms when testing retired players for dementia after a federal judge ordered parties to mediate Monday.

U.S. District Judge Anita Brody quashed the case by former Steelers players Kevin Henry and Najeh Davenport, despite noting that she “remains concerned about the race-norming issue.” 

The Philadelphia judge published this concern both in the case Henry and Davenport brought this past August, and as a separate order in the larger case with the NFL over which she has been presiding for nearly a decade. Calling off a hearing that had been set for Thursday, Brody invited the parties to instead seek mediation before U.S. Magistrate Judge David Strawbridge.

Henry and Davenport’s attorney balked Monday at the plan for mediation. “We are deeply concerned that the court’s proposed solution is to order the very parties who created this discriminatory system to negotiate a fix,” said Cyril Smith with the Baltimore firm Zuckerman Spaeder. "The class of Black former players whom we represent must have a seat at the table and a transparent process.”

NFL spokesman Brian McCarthy meanwhile applauded the court’s decision.

“We are pleased with the court’s decision and look forward to working with class counsel and Magistrate Judge Strawbridge to address the court’s concerns,” McCarthy said in an email. 

When they filed suit in August, Henry and Davenport had said that being Black was the only thing excluding them from the NFL’s $1 billion settlement with the retired athletes it kept in the dark for years about the link between concussions and brain injuries.

The problem is that it is more difficult for Black athletes to show that concussions harmed their brains because doctors can rely on demographics in testing for dementia.

More than 20,000 retired players have brought successful claims, but Henry and Davenport say that the NFL subjects Black athletes to a more rigorous standard in dementia testing, as compared with white athletes, based on the assumption that they started with worse cognitive functioning.

In a footnote to Monday’s order, Brody labeled Henry and Davenport’s suit “an improper attack” on the ongoing settlement. The judge had previously ordered secret negotiations in the case that led to a settlement plan in 2013. 

“Once ‘the settlement has been approved in a final, unappealable order,’ settlement class members may not ‘challenge ... the propriety of the settlement agreement and its terms,” the George H.W. Bush appointee added, quoting Third Circuit precedent.

Retired players who suffer from cognitive problems linked to concussions they suffered during their careers have so far won more than $765 million through the settlement, $335 million of which is linked to dementia, specifically.

Henry, who played for the Steelers between 1993–2000 says he suffers from headaches, depression and memory loss that leave him unable to hold a job. Davenport, who played for the between 2002–08 for the Green Bay Packers and Indianapolis Colts as well as the Steelers, said he was approved for an award until the NFL asked for his test results to be recalculated using racial norms.

Last year, the lead lawyer for retired players covered by the settlement commented he had seen no evidence of racial bias thus far.

Christopher Seeger reiterated that position on Monday while emphasizing that the use of racial norms “has always been left to the clinical judgment of the neuropsychologist and was never mandated by the settlement.”

“That being said, we are continuing to investigate and review claims to determine if any claim was inappropriately denied as a result of application of these adjustments,” the Seeger Weiss attorney said.

“We take the concerns raised about this issue very seriously, and have been formulating proposals that we hope will resolve this issue and give all former players confidence that they will be treated fairly and equally,” Seeger continued.

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