October 26. 2020
I first began following the Gordon case over two years ago in June 2018, though at the time I was unaware of the player’s identity. I became aware of the case when attorney, Wendy Fleishman of Lieff Cabraser objected to the inexplicable denial of Amon Gordon’s thrice approved claim. Judge Brody, apparently unhappy that Fleishman had called attention to the case by filing on the public docket, ordered further briefing to take place on the private settlement portal.
Fleishman complied and all was silent for months until Fleishman again made use of the public docket to appeal the Special Master’s decision, who after being ordered to provide an explanation for the denial, provided only non-answers that left even more unanswered questions.
In a cryptic order, Judge Brody upheld the Special Master’s determination leaving attorneys and lay-people alike trying to figure out what she meant by her statement, “The Court is troubled by the events leading to this objection and has looked into the matter. The Special Masters and the Claims Administrator have assured the Court that the events leading to this objection will not be repeated.”
Following Judge Brody’s ruling, Gordon, through Fleishman appealed to the Third Circuit and when prompted for additional briefing to better understand the need for the discretionary appeal, in her reply, Fleishman requested a stay to file a Rule 60 motion with the trial court, which serves to allow the court to correct a grave error. The case sat in limbo for months on Judge Brody’s docket until out of the blue, Brody called for briefing as to why she should have jurisdiction and Fleishman filed for an indicative ruling on Gordon’s behalf. A ruling never came, however, the Third Circuit revived the case mooting the Rule 60 motion and subsequent briefing, as they did not transfer jurisdiction back to Brody, but instead requested briefing as to why they should have jurisdiction.
Gordon’s answer is explosive.
As it turned out, the excruciating delays for Gordon and his family turned out to be a gift in that all of the lag-time allowed Fleishman to investigate and find her own answers as to the question of “Why?” since the Claims Administrator, Special Master, and Court refused to provide the basis of their denial. Perhaps now we know why they evaded– because the explanation is highly disturbing.
Amon Gordon is Black.
While settlement claims are no cakewalk for any player, white or black, since the NFL really doesn’t want to pay claims, they have found a particularly revolting method of blocking the claims of many black players through the controversial concept of “race-norming,” which applies an algorithm that works on the hypothesis that blacks are less intelligent than whites and adjusts the scores of their neuropsychological testing. Since the NFL is a predominately Black league, this discriminatory process was poised to save them millions, to the detriment of the men who built the league and suffered permanent brain damage as the result.
Fleishman’s brief is heavy on documented facts, beginning with how the settlement came to exist and criteria for claim approval, followed by the chain of events in the mysterious denial of Amon Gordon’s previously approved claim. She details their evasion of her simple question of “Why?”
Gordon filed an objection with the court as to the Special Master’s unexplained reversal and as noted previously, the Court remanded the case back to the Special Master “for further explanation of his determination.”
Afterward, Gordon filed an official appeal of the decision which Judge Brody cryptically denied.
Fleishman then points to some very disturbing facts.
Fleishman further explains that the Special Master agreed that Gordon had fulfilled the first prong of the three-prong test for approval, “a concern for a severe decline in cognitive impairment ‘by virtue of his own report,’” but failed to explain why he determined that Gordon did not meet the other two prongs, “evidence of a moderate or severe cognitive decline from a previous level of performance and functional impairment.”
She notes that interviews were done with the world-class neurologist who diagnosed and treated Gordon and the psychologist who tested him, but their opinions were completely ignored in favor of one dissenting voice who has never even laid eyes on Gordon. (Though not stated in the brief, this is a tactic borrowed from NFL Disability. The NFL and NFLPA went so far as to commission Groom Law Group to file an amicus brief in Black and Decker vs. Nord to minimize the impact of treating physician reports.)
Fleishman emphasizes that in accordance with Gordon’s treating physicians he implicitly qualifies for the Level 1.5 Neurocognitive impairment for which he filed a claim and even dips to a Level 2 in two areas.
Per Dr. Lobatz:
Fleishman takes great care to explain the scope of neuropsychological testing, the requirements for a Level 1.5 diagnosis per the Settlement Agreement, and how Gordon’s diagnosis meets the “generally consistent” standard for pre-effective date claims. She then demonstrates that the only reason that Gordon could have possibly been denied was that race norming adjustments to his neuropsychological testing were made.
Amon Gordon, a Stanford graduate, had a premorbid IQ of 122, which is considered in the Superior range, just below Genius. Race norming does not acknowledge that a black person can possess this level of intelligence, therefore Amon’s scores were adjusted to an “average” score from which his performance would have to drop two to three times as much as when race norming is not applied. In other words, it seems Gordon would have to fall to a level roughly equivalent to “mental retardation” for his decline to be acknowledged.
It also seems especially wrong that an African-American Special Master would go along with this. According to race norms, he should not be a lawyer, law professor, or Special Master to the Court. What an incredible double-standard for someone who should be highly offended by this notion!
Fleishman goes into great detail in her explanation as to how this works, and if you’re interested in a deep-dive as to how this works, you should most certainly read her brief.
Opaque explanations. That’s another disability tactic. So much for statements to the Class that there was no connection. And this is just one connection of many.
An action filed by Najeh Davenport and Kevin Henry on August 25 appears to be the catalyst that finally began to shed light on the unexplained and seemingly inexplicable.
Davenport’s filing even shows that the Special Master has acknowledged the consequences of applying race norms.
Through her investigation, Fleishman learned that “the NFL and Class Counsel developed a Clinician’s Interpretation Guide for the BAP (“the BAP Guide”) that expressly urges clinicians to ‘correct’ test scores based on a retired player’s race.” The BAP guide still remains highly confidential, and with this in place, it’s very easy to see why.
The NFL has a long history of evading compensation of former players damaged by the game and as such has advocated for this disgraceful manipulation of scores and opposed diagnoses where race norms were not applied, though they are not mandated by the Settlement Agreement.
So much for Goodell’s social justice apology. In view of the Concussion Settlement, the NFL is advancing systemic racism in the worst kind of way.
Fleishman advances the argument that the NFL’s behavior (in which it seems that Class Counsel, the Claims Administrator, and at least some officers of the Court are complicit) is not only abhorrent and unethical (my words) but also a violation of the United States Constitution’s equal protection principles.
“In effect, the Settlement, as it has been administered, has a White door and a Black door.”
If the Gordon and/or Davenport actions are successful—and it’s difficult to see how the appellate court could condone this blatantly discriminatory and illegal behavior—then it could be a major breakthrough for many black former players who have been unjustly denied compensation.
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Sheilla Dingus founded Advocacy for Fairness in Sports in October 2016, after a stint with Defenders of the Wall, a New England Patriots based blog where she dived deep into the legal aspects of Deflategate. Along the way, she observed many inequities in sports and felt a need to address some of the under-reported stories in sports law. She draws from her background as a former professional dancer, who like many of the athletes she writes about, took an early retirement due to orthopedic injuries. After a return trip to college she worked for a legal software company, with seven years as a Project Manager and Analyst. She brings her analytical skills to the table in breaking down complex lawsuits, and enjoys pursuing her longtime interest in journalism.