Together with attorneys from Zuckerman Spaeder and J.R. Wyatt Law, in a lawsuit filed on August 25, 2020 in federal court in Philadelphia, Edward Stone Law is representing two Black retired NFL players, Kevin Henry and Najeh Davenport, who claim that the NFL deliberately manipulated ex-players’ “cognitive function” test scores in a way that made it less likely that Black ex-players would receive benefits under the landmark 2016 concussion settlement.

Davenport, who played seven years for the Green Bay Packers, Pittsburgh Steelers and Indianapolis Colts, and Henry, who played 8 years for the Pittsburgh Steelers, say that the NFL violated federal law in processing claims under the settlement by using different sets of data for Black and White players. This “race-norming,” which is not required by the NFL-sponsored settlement agreement, has made it much more difficult for Black retirees to receive compensation for cognitive impairment under the settlement – undercutting one of the main purposes of the deal.

The two players have asked the federal court overseeing the settlement to make clear that the NFL cannot use harmful “race-normed” scores when assessing eligibility for retiree benefits. In a separate filing, they have asked that the NFL pay damages to Black ex-players who were subjected to the illegal practice.

“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,” said Cy Smith, a Zuckerman Spaeder LLP partner and lead counsel for the players. “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.”

The NFL’s use of race-norming is explained in the lawsuit: “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. As a result, if a Black former player and a White former player receive the exact same scores on a battery of tests designed to measure their current cognitive functioning, the Black player is presumed to have suffered less impairment…The NFL’s actions were designed to, and did, make it far more difficult for Black retirees to receive benefits…”

The lawsuit can be viewed here (pdf), and the motion for relief can be viewed here (pdf).

The retired players are represented by Cy SmithAitan GoelmanSteve HermanDavid ReiserEzra Marcus and Megan McKoy of Zuckerman Spaeder in Baltimore and Washington, D.C., as well as Justin Wyatt of J.R. Wyatt Law and Edward Stone of Edward Stone Law, both in New York.  The existing NFL concussion case is Kevin Turner, et al. v. National Football League, et al., No. 2:12-md-02323-AB (E.D. Pa.), and the new case is Kevin Henry, et al. v. National Football League, et al. (E.D. Pa.).

A four year long lawsuit by 318 former National Hockey League (NHL) players reached a settlement in November 2018. The settlement will reportedly provide the settling players with free neuropsychological tests, up to $75,000 for treatment, and up to $20,000 in cash per player.  A “Common Good Fund” will also be established to assist other players in need. The Washington Post quoted this from the league: “The NHL does not acknowledge any liability for any of Plaintiffs’ claims in these cases,” the league said in a statement. “However, the parties agree that the settlement is a fair and reasonable resolution and that it is in the parties’ respective best interests to receive the benefits of the settlement and to avoid the burden, risk and expense of further litigation.”  Unlike the NFL settlement, this was not a class action settlement.  The lawsuit consisted of just 146 plaintiffs, along with another 172 who retained counsel.  The settlement has a 75 day “opt-in” period, and requires judicial approval.

Judge Anita B. Brody’s “Explanation and Order” of December 8, 2017 concluding that  the anti-assignment language in the NFL Concussion Litigation Settlement Agreement “unambiguously prohibits” the class members from assigning their monetary awards rendering “any such purported assignment . . . void, invalid and of no force and effect” was adopted by Judge Loretta A. Preska, Senior United States District Judge for the Southern District of New York in the case styled as Consumer Financial Protection Bureau and The People of the State of New York,  by Eric T. Schneiderman, Attorney General for the State of New York v. RD Legal Funding, LLC; RD Legal Finance, LLC; RD Legal Funding Partners, LP; and Roni Dersovitz, 17-cv-890 (S.D.N.Y. June 21, 2018).  Judge Preska stated: ” In sum, Judge Brody’s interpretation of the term “relating to” complies with New York contract law and basic principles of contract interpretation by giving meaning to the plain meaning of the phrase. Accordingly, the Court agrees with the Explanation and Order’s conclusion.  Accordingly, the Court agrees with the Explanation and Order’s conclusion.”

If you weren’t worried about concussions before,  “Concussion Protocol“, directed by Josh Begley of The Intercept and produced by Laura Poitras should do it for you.  The masterful film contains footage of each concussion reported during the 2017-2018 NFL season. 281 reported concussions – the most reported in the past 6 years. The NFL Concussion Settlement is lacking in many ways, but hopefully the one good thing that will come out of this lawsuit is more attention paid to concussions at every level of play – from Pop Warner to the NFL, and every sport from football, hockey, baseball, soccer, lacrosse.

Attorney Edward S. Stone helps explain some of the difficulties surrounding the NFL Concussion Settlement in this article “The NFL Concussion Settlement, Traumatic Brain Injury, and CTE: Fact, Fiction, and Spin Doctoring”.  The Journal of Legal Nurse Consulting Vol. 28, Issue 3, Fall 2017, pp. 8-11.  Meanwhile, medical researchers continue to explore new ways to ascertain brain damage, including the possibility of using blood tests to detect concussions.  More on this can be found in this article in The Guardian – “NFL concussion: researchers hope blood tests can better detect head trauma.”

Chronic traumatic encephalopathy (CTE) has been identified in 96% of the deceased NFL players that have been examined by researchers with the Department of Veterans Affairs and Boston University. Signs of CTE can be identified in living persons using brain scans, but as yet the disease can only be positively identified posthumously. Researchers believe that CTE comes from repetitive trauma to the head.  The recent data from the research might be skewed since the study uses brains that have been donated for testing, and many of the individuals who have made provisions for posthumous testing have done so because they suspected CTE. However, in an interview with Frontline, Dr. Ann McKee, Chief of Neuropathology with the VA Boston Healthcare System said the latest numbers were  “remarkably consistent” with past research suggesting a link between football and CTE.

The bottom line is this:  CTE is real and it is seen at high rate in the brain tissue of athletes who were subjected to repeated head trauma. And in a cruel twist, the NFL Concussion Settlement will provide no awards for players who die from CTE after the settlement date.

Sony Pictures released the trailer for Will Smith’s new film, “Concussion” on Monday, just days before the 2015 football season begins.  “Concussion” stars Will Smith as Dr. Bennet Omalu, a Nigerian born neuropathologist credited with discovering chronic traumatic encephalopathy (CTE) in the brains of former NFL players. Among its shortcomings, the NFL concussion settlement currently being appealed does not provide any benefits for former NFL players who die from CTE in the future. Appeals in the NFL concussion settlement are scheduled to be heard this fall, just before “Concussion” opens in theaters on Christmas Day. The science behind the plot of “Concussion” is well explained in the amicus brief filed by the Brain Injury Association of America in the NFL concussion litigation.

The NFL concussion settlement approved in April by U.S. District Court Judge Anita Brody has been appealed and the Third Circuit Court of Appeals is expected to hear these appeals sometime this fall. No payments will be made under the settlement until all appeals have been exhausted. The advocacy group, the Brain Injury Association of America filed an amicus brief supporting a reversal of the settlement asserting that the settlement “neither recognizes nor compensates the majority of players suffering long-term consequences of brain trauma, but merely rewards certain, small, discrete groups.”