Spotlight

Kenny Jenkins '78 and Dwight Bostwick '79 Take on the NFL

Kenny Jenkins '78 and Dwight Bostwick '79 share a history and a friendship that dates to their time together on Landon’s 1976-78 baseball teams. “We were a formidable pair up the center. Dwight was at shortstop, and I was at second base,” Kenny states about he and his former teammate. “He was a great baseball player, and I had a lot of fun playing with him.” Dwight shares Kenny’s feelings. “I have always had a great deal of respect for Kenny. He was athletic and classy. I definitely admired him.” 

Kenny and Dwight have remained close friends since their time together at Landon. Both still live and work in the area, and each has become a leader within their professional field. Kenny was an incredible all-around athlete at Landon. He excelled on the football field, and eventually, he went on to play in the National Football League (NFL) for the Philadelphia Eagles, Detroit Lions, and the Washington Redskins (now Commanders) from 1982 to 1986. He retired from the Washington Redskins in 1987, and still holds the NFL record as the only player to amass 75+ yards rushing, 75+ yards receiving, and 75+ yards on kickoff returns in a single game. Today, Kenny works in insurance sales for the Meltzer Group/NFP and is the current president of the NFL Players Association (NFLPA) Former Players Chapter in Washington, D.C. 

While Kenny pursued his dream of playing professional football, Dwight’s legal career abounded. After graduating from Georgetown Law School, he worked for the Department of Justice. Initially, he worked in the Criminal Division’s Fraud Section and then later in the Deputy Attorney General’s Office. Dwight is now Chairman and Managing Partner at Zuckerman Spaeder, LLP., a nationally recognized law firm representing clients in high stakes litigation of all types. 

The story of how Kenny and Dwight became involved with one another professionally began when thousands of former NFL players filed lawsuits for compensation due to serious medical conditions they alleged were caused by game-related head trauma. The lawsuits alleged that the NFL intentionally and fraudulently misrepresented and/or concealed medical evidence about the short-term and long-term risks associated with repetitive traumatic brain injury. Following years of litigation, the case was settled in favor of the players. The court awarded $750M to be distributed to all those who qualified for compensation, but Dwight and some other law firms objected. They argued that $750M was not enough compensation, and won. Ultimately, the "cap" was removed, freeing up millions of dollars in financial relief for former affected players.

During the litigation, Kenny, who was an officer in an association of former NFL Players knew that many players were struggling to understand their rights and did not know an attorney they could trust. Kenny asked Dwight if he would be willing to spend some of his free time regularly speaking at Kenny’s chapter meetings to provide general updates on the lawsuit and the legal process. Dwight did so and, ultimately, a few dozen players asked Dwight and his firm to represent them personally.  

In April of 2016, the concussion case was settled under a process where individual former NFL players could recover damages based on how they scored on a battery of cognitive tests. Once completed, their scores were submitted to the NFL and a determination was made as to whether they would qualify for compensation. Yet, as black players applied for the payout (70% of former NFL Players are black), their claims were denied at a far greater rate than those of white players. Evidence began to develop that the NFL was encouraging or requiring their doctors to use the controversial practice of “race norming."  Under this practice, black players were presumed to have lower cognitive functioning than white players to begin with, which meant that the black players had to demonstrate more cognitive impairment than whites to meet the NFL’s threshold for a payout. The use of race norming led to many more black player claim denials than white claim denials. Furthermore, the NFL also appealed many black player claims that were previously approved, arguing that the attending physicians did not properly identify their patients as “black.”

The David and Goliath story continued, with Dwight and Kenny now taking on the NFL separately from different angles. Dwight’s firm was hired by two black former NFL players who had evidence that “race norming” was used to deny their claims for compensation. They asked, in essence, “we are being treated unfairly based on our race, and the settlement is closed. How do we reopen it and change it?” It was a challenging legal position from the start, but lawyers from Dwight’s firm filed on behalf of the two former players feeling that inaction was not an option.  

Initially, the new legal action challenging the race norming practice in a closed settlement was gaining little traction in court or in the court of public opinion. However, the case took a positive turn when Kenny, his wife “Hurricane Amy,” and a host of former NFL players and their wives started a petition to end the NFL’s race norming practice. The group, armed with 60,000 signatures on the petition, marched to the courthouse with cameras rolling. They brought national attention to the issue, with Ken appearing on ESPN, AP News, The Don Lemon Show on CNN, and many others. Dwight, who had not been involved with the petition or the media blitz, credits this public relations effort with educating the public and bringing pressure on the NFL to do the right thing. Dwight says that “without question, the work Kenny, his wife, and other former players did to bring this issue to the public’s attention played a critical role in shining a light on this issue. It was really impressive.”    

Ultimately, the Judge in the case appointed a special master to meet with the lawyers from both sides to try to resolve the issues. Finally, in January 2022, and based in part on the negative publicity brought on by the relentless media tour by Ken and others, the NFL agreed to remove the discriminatory practice of “race norming” from the provisions of the settlement. 

The new agreement is a game changer for many former NFL players who suffer from cognitive impairment and who were previously denied compensation from the original settlement. “Old tests will be rescored, and new tests will be taken using the same standards for black and white players”, Dwight added. 

Despite his recent success, Kenny wants to keep the pressure on the NFL. He is urging the Department of Justice Civil Rights Division to open an inquiry around this matter to see if the former players’ civil rights were violated. “I am not convinced the NFL has been completely transparent in their practices and dealings with former players,” Ken said. “I won’t stop until they are held accountable for their actions.” 

“We were so fortunate to be able to work on different aspects of a project of such importance,” Dwight added.” We are both proud to have made a difference in an area involving the civil rights of these former players.”  Dwight is also proud of his firm’s role in helping end the use of “race norming.” He and Kenny both pointed out that the lawsuit has catalyzed a public discussion of how race norms throughout medicine and mental health contribute to health inequities and discrimination against people of color. 

Kenny and Dwight are proud of all they have accomplished on behalf of former NFL athletes. What began as two teammates on a baseball team, has grown into a lifelong friendship replete with admiration and respect for one another. They still get together when they can and share stories about former coaches Ed Sundt, Robert Wipfler, and Lowell Davis.   

 

Read more about the NFL race-norming case: Washington Post, August 2, 2021 

Read more about the NFL race-norming case: Washington Post, September 29, 2021