Paulson & Nace Files Class Action Lawsuit Alleging Race-Norming Practices in NFL Benefit Plans

Partner Christopher T. Nace of Paulson & Nace, PLLC is representing former NFL players Stacey Bailey and Eric Curry in a class action lawsuit against multiple plaintiffs, alleging that the use of illegal race-norming practices led to lower disability payments for Black applicants. This is the second class-action lawsuit filed which alleges such discriminatory practices by the NFL and its associated programs.

The lawsuit was filed in the United States District Court for the District of Maryland, on behalf of Bailey, Curry, and all other affected and applicable plaintiffs against “the NFL Disability & Survivor Benefits Plan, the Bert Bell/Pete Rozelle NFL Player Retirement Plan, the 88 Plan, and the boards and initial disability claims committees of those plans.”

Paulson & Nace is serving as co-counsel in this case, and looks forward to working with the lead attorneys from the Beasley Allen firm.

Understanding the severity of the players’ impairments

Stacey Bailey is a former wide receiver for the Atlanta Falcons, and Eric Curry is a former defensive ender for the Tampa Bay Buccaneers. Both players have been diagnosed with cognitive impairments that can be traced back to their time playing in the NFL. None of these facts are in dispute.

Per the complaint, Bailey and Curry were both diagnosed with “mild impairment,” despite suffering “from serious impairments in multiple domains.” Both men suffer with “memory loss, language difficulty, and an inability to perform many day-to-day tasks.” These impairments which, again, were the direct result of playing in the NFL, have affected their abilities to function as well as their quality of like. From the complaint:

Mr. Bailey has been unable to manage the landscaping business he started after his NFL career ended, primarily handing it over to his children, because of his neurocognitive impairments, and he can no longer participate in many household tasks or in household decision-making. Mr. Bailey defers many decisions to his wife and has stopped socializing and speaking publicly at football-related events. Both Mr. Bailey’s language and memory are seriously impaired… For example, Mr. Bailey has had difficulty remembering the names of his grandchildren, and he often has trouble finding words. He also suffers from headaches, a depressed mood, and anxiety. Mr. Bailey’s impairments require the use of compensatory strategies and accommodations to allow him to perform routine activities of daily living and to engage in any for-profit occupation. Mr. Bailey’s condition is so severe that in October 2020 he was diagnosed with Alzheimer’s disease, based on symptoms he has experienced going at least as far back as September 2016.

[…]

In recent years, Mr. Curry has experienced serious neurocognitive impairments that have prevented him from working and living a normal life. He can no longer participate in many household tasks or in household decision making. Mr. Curry demonstrated cognitive deficits in cognitive processing speed, executive functioning, immediate and delayed memory, and motor speed domains…. Mr. Curry has a documented history of functional decline due to neurological impairment. Prior to his most recent application, Mr. Curry was a beneficiary of the Disability Plan benefits due to neurological conditions until later when his benefits were revoked and denied by the Board of the Disability Plan.

These are serious impairments, and we believe that both players should have been diagnosed with a Level 2 (“moderate”) impairment, which would have enabled them to receive additional benefits. The lawsuit alleges that the reason they were not diagnosed with greater impairments is because they are Black.

How race-norming affects disability payouts for Black NFL players

To qualify for disability benefits, players are given a series of tests which analyze their cognitive decline/impairment. There is a baseline score of what is considered “impaired,” and players’ scores are measured against this baseline.

Both Curry and Bailey allege in their complaint that they were purposely misdiagnosed with less severe impairments because of race-norming: a discriminatory practice dating back to slavery, in which Black people are assumed to have lower cognitive functioning than white people, and so the scores on tests are adjusted. Rather than compare the raw scores to a general baseline, race-norming compares the scores within a specific race, called a “reference population” – and the reference population is already assumed to have lower cognitive function, which means deviations are scored differently.

These cognitive tests are based on percentiles; to illustrate how they work, imagine a scale from 1 to 100. The halfway point, or 50, is “normal” cognitive functioning. A person who scores between 40 and 49, for example, would be diagnosed with mild impairment. Anyone scoring between 30 and 39 would be moderate, and anyone below 30 would be severe. As such, a player who scores a 33 out of 100 would be diagnosed moderately impaired, as there is a 17 point deviation from the “norm.”

But now imagine that, because you are Black, the “normal” range is set at a lower percentage – say, at 42. A Black player who scores a 33 out of 100 may only be diagnosed with mild impairment because there is only a 9 point deviation from the “norm” set for Black players. By starting from this racist and erroneous presumption, the Plans named above (and the people who administer them) consistently award reduced benefits to Black players.

Our clients are not the only ones alleging race-norming practices in the NFL. As Law360 reports, “Ten retired NFL players filed a proposed class action in Baltimore federal court [in February] alleging that the disability benefits plan jointly operated by the league and the players’ association unjustly denied benefits to injured players.”

The lawsuit seeks to enjoin (prohibit) the defendants from engaging in race-norming and other discriminatory practices now and moving forward, as well as additional compensation for any benefits they are owed, compensatory and punitive damages, interest owed, court costs, attorneys’ fees, and any additional awards “which the Court may deem just, proper, and equitable.”

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Paulson & Nace, PLLC is based in Washington, D.C. and serves clients throughout the region, including those in Maryland and West Virginia. Please contact Paulson & Nace, PLLC through this contact form or by calling our offices today.