By Nate D. French, Esq., and Nathan J. Law, Esq.
On August 25, 2020, two former National Football League (“NFL”) players, Kevin Henry and Najeh Davenport, filed a class action lawsuit against the NFL in Pennsylvania Federal Court alleging the NFL limited black players access to concussion settlement funds. The class is made up of black players who were part of the June 23, 2014 Settlement Agreement reached in In re: National Football League: Players’ Concussion Injury Litigation. Henry and Davenport, both retired black NFL players, allege the NFL deliberately altered ex-players “cognitive function” scores in a way that made it harder for former black players to receive benefits under the Settlement Agreement.
Henry and Davenport, on behalf of the class, argue in the complaint that the Settlement Agreement is marred by an unacceptable flaw; namely that the formula used by the NFL in identifying qualifying diagnoses discriminates on the basis of race. As a result of the discriminatory formula, it is alleged that the NFL has avoided paying head-injury claims that should qualify for payment under the Settlement Agreement. The complaint alleges that when being evaluated for qualifying diagnoses of neurocognitive impairment, black players are automatically assumed to have started with worse cognitive functioning than white players. This is known as “race-norming,” or “within-group score conversion,” and refers to the practice of adjusting test scores to account for the race or ethnicity of the test taker. This practice was outlawed by the Civil Rights Act of 1991. The complaint alleges race-norming occurred when a retired black player and retired white player received the same raw scores on a variety of tests designed to measure current cognitive functioning, however, the black player was found to have suffered less impairment, and therefore was less likely to receive benefits. Specifically, the Players are alleging the Baseline Assessment Program (“BAP”) Guide, developed by the NFL and class counsel in negotiating the 2014 Settlement Agreement, is improper in that it requires a “full demographic correction” by an evaluating neuropsychologist when evaluating a player’s test scores.
Henry played for the Pittsburgh Steelers while in the NFL from 1993—2000. During his playing career, he suffered multiple concussions. Pursuant to the 2014 Concussion Litigation Settlement Agreement, Henry received a neurological examination from a physician on August 2, 2017. The physician concluded that Henry’s test scores qualified him for benefits in the categories of executive functioning (Level 1.5) and learning and memory (Level 2). Despite this, Henry was denied benefits. Henry underwent a second neurological examination on December 5, 2019. This time, the physician determined that Henry’s test scores did not qualify him for benefits under Level 1.5 or Level 2. The complaint notes that the second neurological examination used a “Full Demographic Model,” which took into account age, education, and race/ethnicity.
Davenport played for the Green Bay Packers, Pittsburgh Steelers, and Indianapolis Colts during his time in the NFL from 2002—2008. The complaint alleges that he suffered over 10 concussions during his playing career. Pursuant to the 2014 Settlement Agreement, Davenport received a neurological examination from a physician on November 5, 2019. The physician concluded that Davenport’s test scores qualified him for benefits in the categories of executive functioning (Level 1.5) and language (Level 2). Following this, Davenport received a Notice of Monetary Award indicating that he would receive benefits. However, the NFL appealed the award of benefits, arguing, in part, that an independent re-calculation of Mr. Davenport’s scores was done which applied race-based norms, and that the re-calculation showed that Davenport did not display the requisite cognitive impairment to receive benefits.
This case presents several unique legal questions and challenges. As a threshold matter, because the NFL is a private entity, the Players will need to show that the NFL’s evaluation criteria intentionally discriminated against the Players based on their race. However, since this case is brought under 42 USC § 1981 (“§ 1981”), and involves non-governmental Parties, the NFL can rebut this accusation with evidence of a legitimate nondiscriminatory reason justifying the evaluation criteria. Doe v. Kamehameha Sch./Bishop Estate, 416 F. 3d 1025, 1039 (9th Cir. 2005). This is a much lower standard than a “strict scrutiny” standard typically used in equal protection cases alleging racial discrimination.
Assuming the Players can meet these criteria to state a case under § 1981, there is still the question of whether the Players are correct in their assertion that the NFL was required to consult with them when establishing the BAP evaluation guidelines, and specifically whether demographic corrections can be part of the guidelines. Next, is the unique legal issue of “race-norming.” While the Players are correct that race-norming is generally illegal, the practice has so far been addressed mainly in the context of affirmative action cases where race-norming practices were allegedly used to pass over white candidates for promotions. This is also the first known legal challenge to the use of race-norms in the field of neuropsychology. Another potential stumbling block for the Players is the undisputable fact that race is not the only factor used in BAP demographic correction, rather many demographic factors are considered, such as acceptance into universities.
Lastly, it will be interesting to see the potential impact this case will have on the NFL’s relationship with the insurance industry. Concussion litigation settlements are currently valued at $1 billion, giving the NFL an uphill battle with the future of providing insurance coverage against the payout of personal injury settlements for players. In fact, some insurance companies have refused to defend policyholders in such matters. Whether an insurer is obligated to defend a policy holder in a § 1981 claim turns on whether the insured committed acts of intentional discrimination on the basis of race, as such acts are typically found to be excluded from coverage. Travelers Cas. & Sur. Co. v. Rage Admin. & Mktg. Servs., Inc., 42 F. Supp. 2d 1159, 1999 (D. Kan. 1999). The element of “intentional discrimination on the basis of race” is also an element of the prima facie case the Players need to set out in their case. As such, the present case has the potential to harm the future sustainability of the NFL.
Needless to say, this case has all the makings of a landmark decision and will be an interesting case to follow throughout the various stages of discovery.
Nate D. French, Esq. is an Associate in Segal McCambridge Smith & Mahoney, Ltd. s Chicago, Illinois office. He focuses his practice on insurance defense and is also a member of the firm’s Sports, Recreation and Entertainment Practice Group.
Nathan J. Law is an associate attorney focusing his practice on a wide array of litigation matters. He focuses his practice on product liability, professional liability, and insurance defense claims. Nathan is also member of the firm’s Sports, Recreation and Entertainment Practice Group.
