Milwaukee Journal Sentinel

NFL concussion deals criticized

Ex-Packer Davenport one of two plaintiffs

- Bruce Vielmetti

Ex-Packer Najeh Davenport says NFL concussion settlement­s discrimina­te against Black players.

Former Green Bay Packer Najeh Davenport is one of two Black retired players who accuse the NFL of racial discrimina­tion in how it doles out settlement­s to those suffering brain damage from repeated concussion­s during their careers.

Davenport, a running back who also played for the Steelers and Colts between 2003 and 2008, is one of two named plaintiffs in a federal lawsuit filed Monday in Pennsylvan­ia. The other is Kevin Henry, who played eight years for the Steelers. But their lawsuit seeks to represent a class of thousands of Black former players who might claim compensati­on for concussion­s suffered before the NFL treated them as a serious injury.

The suit asks the judge overseeing the 2014 settlement of prior cases over head injuries in the NFL to prohibit the use of so-called "race normed" standards when assessing eligibilit­y for the benefits.

According to the suit, the so-called race norms tend to presume Black players started out with less cognitive function than white players, so that when cognition is measured now to assess impairment, the difference doesn't look as bad and Black players qualify for benefits less often.

“The NFL's administra­tion of the settlement created a ‘Black' door and a ‘White' door for benefits, in which former players with identical test scores get different treatment — solely on the basis of race,” said Cy Smith, the lead attorney for the lawyers, and a partner at Zuckerman Spaeder LLP in Washington, D.C.

“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.”

NFL officials could not be immediatel­y reached Tuesday.

According to the suit, Davenport endured more than ten concussion­s while playing, including one in which he lost consciousn­ess. Today, he suffers memory loss, cognitive decline and depression and struggles with daily chores.

As part of his applicatio­n for benefits under the settlement, Davenport got a neurologic­al exam last year. A doctor found moderate decline/mild dementia for executive functionin­g, and severe decline/moderate dementia for language. Davenport was notified he qualified for compensati­on.

But the NFL appealed. A second, race-normed examinatio­n, concluded Davenport suffered no cognitive impairment­s, and should not receive any payout under the settlement.

In 2011, when it became clearer that NFL players had suffered brain injuries from playing, they began suing the league, individual­ly and in groups, around the country. The actions were consolidat­ed into litigation before a federal judge in Philadelph­ia and resulted in the 2014 agreement to compensate players for cognitive impairment­s suffered from concussion­s.

As of Aug. 1, there are more than 20,000 members of the class, the majority of whom are Black, and 1,170 payouts, according to the website of the settlement administra­tor. More than 12,000 members of the class have been subjected to baseline testing, and few have had evaluation­s of their current conditions.

The lawsuit asks a judge to declare the current practice violates the Black players' rights to equal protection, stop its use, and pay damages to the affected retirees for pain, suffering and humiliatio­n, as well as punitive damages.

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