Counsel Liability Waiver in NFL Concussion Settlement Criticized

[ad_1]

Lawyers representing Black players in the NFL’s concussion litigation asked a judge to allow claims to be brought against the firm that negotiated the concussion settlement and the settlement of race norming policies.

Lead class counsel, Seeger Weiss LLP, shouldn’t be released from liability “for originally negotiating and agreeing to the race normed terms in the first place,” Goldberg, Persky & White PC told the US District Court for the Eastern District of Pennsylvania Wednesday .

Goldberg, Persky & White represents more than 600 players in the concussion litigation. It asserts that “more than half” of the former players they represent “are Black or Brown.”

The settlement, which is subject to court approval, stems from a proposed class action by Black retired players who alleged the league deliberately manipulated their “cognitive function” test scores in a way that made it less likely they would receive benefits under a 2016 concussion settlement , worth an estimated $1 billion.

The agreement, filed Oct. 20, 2021, eliminates the use of race norming going forward and allows retired players affected by race norming to be reexamined or have their neuropsychological tests rescored.

Named plaintiffs in the now-dismissed class action, Kevin Henry and Najeh Davenport, alleged that they had claims denied despite qualifying for benefits due to the league’s use of “race-normed scores.”

Davenport—who played seven years for the Green Bay Packers, Pittsburgh Steelers, and Indianapolis Colts—and Henry—who played eight years for the Steelers—said 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 isn’t required by the NFL-sponsored settlement agreement, 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 players said.

Judge Anita B. Brody in March dismissed the suit as “an improper collateral attack” on the concussion settlement, but ordered that the NFL and Seeger Weiss—the original parties that drafted the settlement agreement—”seek to address the concerns relating to the race -norming issue” in front of Magistrate Judge David Strawbridge.

Brody in June granted the request of Davenport and Henry to take part in the mediation about the settlement agreement—which was drafted by the league and the ex-players’ lawyers at Seeger Weiss—one day after the NFL announced that it would end race- based assessments.

Goldberg, Persky & White also objected to a proposal in the settlement that would bar players, but not the NFL, from appealing any re-scoring performed by the claims administrator that results in a monetary award. The only equitable remedy, the firm said, is to specify that neither the players nor the NFL are “provided with an appeal right to any re-scoring.” The firm asserts that it filed the first two lawsuits that initiated the litigation, which ultimately resulted in the class action settlement.

Seeger Weiss was appointed as lead counsel in 2012.

Paul, Weiss, Rifkind, Wharton & Garrison LLP and Troutman Pepper LLP represent the NFL.

The case is In re Nat’l Football League Players’ Ass’n Injury Litig., ED Pa., No. 12-md-02323, 2/16/22.

[ad_2]