This August 2, 2021 Washington Post feature article examines the controversial practice of “race-norming” and its use by the NFL in determining compensation for former players in the NFL Concussion Settlement. The Washington Post’s investigation found that “the NFL and Seeger are responsible for building a settlement claims process that guaranteed race-norming would occur, making it more difficult for some Black former players to qualify for payments, and they failed to act on concerns that the practice was discriminating against Black former players as far back as 2019.” According to the Washington Post, counsel for the NFL, Brad Karp, declined to be interviewed for the article, but in written statements to the Post, “continued to defend the practice of race-norming and disputed claims made by former players, their lawyers, and some members of Congress that the practice is discriminatory.”

Najeh Davenport and Kevin Henry sued the NFL in August 2020, alleging that their “cognitive function” test scores were manipulated using “race-norming” to reduce their chances of receiving benefits under the concussion settlement. Judge Anita Brody dismissed their claims in March 2021 as “an improper collateral attack on the settlement agreement in the NFL multidistrict litigation” but expressed concern over the practice of race-norming and ordered that the NFL and Class Counsel, Seeger Weiss address the issue with Magistrate David Strawbridge. In June 2021, Judge Brody allowed Mr. Davenport and Mr. Henry to participate in the mediation with the NFL and Class Counsel.

Kevin Henry and Najeh Davenport are represented by Cyril V. Smith, Aitan D. Goelman and Ezra B. Marcus of Zuckerman Spaeder LLP, Edward S. Stone of Edward Stone Law PC, and J.R. Wyatt of J.R. Wyatt Law PLLC. The two cases are In re: National Football League Players’ Concussion Injury Litigation, No. 2:12-md-02323 (E.D. Pa.), and Henry et al. v. NFL, No. 2:20-cv-04165 (E.D. Pa).

Just one day after the NFL announced that it would work to end  the use of “race-norming” in the NFL Concussion Settlement, U.S. District Judge Anita Brody (E.D. Pa.) granted the request of two former Pittsburgh Steelers, Kevin Henry and Najeh Davenport to intervene in the mediation between the NFL and class counsel, Chris Seeger. Mr. Davenport and Mr. Henry sued the NFL in August 2020 alleging civil rights violations resulting from the use of “race-norms” in the NFL Concussion Settlement. The suit was dismissed by Judge Brody as “an improper collateral attack on the settlement agreement….”

The controversial practice of “race-norming” assumes that Black players have a lower cognitive function compared to non-Black players, which made it much more difficult for Black players to qualify for an award in through the NFL Concussion Settlement.

Last month, a group of NFL families dropped off more than 50,000 petitions at the Federal Courthouse in Philadelphia where Judge Anita Brody dismissed Mr. Henry’s and Mr. Davenport’s civil rights lawsuit which alleged that both former players would have received settlement awards from the NFL if the settlement administrators had applied the same norms used for non-Black players.

The NFL Concussion Settlement was finalized in 2017. Since that time, more than 2,000 former players have filed claims, but fewer than 600 former players have received awards.

Henry and Davenport are represented by Cyril V. Smith, Aitan D. Goelman and Ezra B. Marcus of Zuckerman Spaeder LLP, Edward S. Stone of Edward Stone Law PC, and J.R. Wyatt of J.R. Wyatt Law PLLC. The two cases are In re: National Football League Players’ Concussion Injury Litigation, No. 2:12-md-02323 (E.D. Pa.), and Henry et al. v. NFL, No. 2:20-cv-04165 (E.D. Pa).