The NFL considers concussions serious injuries, but that has not always been the case. Now, Black players who sustained repeated brain injuries during their NFL careers are suing the league over claims of racially discriminatory treatment.
Retired NFL running back Najeh Davenport sustained more than ten concussions while playing eight years of professional football, including one in which he lost consciousness. Today, he is living with cognitive impairment including memory loss and depression. His cognitive issues are such that he struggles with daily chores.
Under a 2014 settlement in which the NFL agreed to financially compensate players for cognitive impairment linked to their football careers, Davenport applied for benefits, and as part of his application, he underwent a neurological exam last year which indicated moderate decline or mild dementia for executive functioning and severe decline or moderate dementia for language. This triggering a notification that he qualified for compensation. But the league appealed.
The NFL ordered a second exam, after which it concluded that, in fact, Davenport suffered no cognitive impairments and should not receive any payout under the settlement. The second exam, however, was allegedly “race-normed.”
In a federal lawsuit filed this week in Philadelphia, retired professional football players including Davenport have accused the NFL of racial discrimination in how it handles settlements for players who sustained brain damage or developed dementia linked to head injuries during their football careers.
Davenport, who played seven years for the Green Bay Packers, Pittsburgh Steelers and Indianapolis Colts, and retired player Kevin Henry who played eight years for the Pittsburgh Steelers are the suit’s two named plaintiffs, but it represents approximately 20,000 other Black former NFL players whom the suit says are entitled to compensation for their brain injuries. Their claim is that the NFL manipulated ex-players’ cognitive function test scores in such a way that Black players were less likely to receive the benefits outlined by the 2014 NFL-sponsored concussions settlement.
“When being evaluated for the Qualifying Diagnoses of Neurocognitive Impairment, Black former players are automatically assumed (through a statistical manipulation called ‘race-norming’) to have started with worse cognitive functioning than white former players,” the suit reads. “As a result, if a Black former player and a white former player receive the exact same raw scores on a battery of tests designed to measure their current cognitive functioning, the Black player is presumed to have suffered less impairment, and he is therefore less likely to qualify for compensation.”
Davenport and Henry claim the NFL violated federal law in processing claims under the settlement by “race-norming,” or using different sets of data to set cognitive benchmarks for Black and white players that make it much harder for them to receive their due compensation under the settlement.
In 2011, after learning of the deaths of former players from a form of dementia induced by repeated brain trauma, retired NFL players began filing personal injury actions in courts across the U.S., seeking damages or relief from the NFL in the form of medical monitoring. The actions were consolidated into a lawsuit in federal court in Philadelphia, leading to that 2014 settlement. Now plaintiffs have asked the federal judge who oversaw it to outlaw race-normed scores, and separately, they have asked that the NFL compensate Black players who were subjected to race-norming by paying back damages.
Cy Smith, a lawyer for the plaintiffs said the NFL’s handling of benefits distribution has been racist: “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,” he said in a recent statement. “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.”