(AP) — The NFL
pledged on Wednesday to stop using “race-norming,” which assumed Black players started out with lower cognitive function, in the $1 billion settlement of brain injury
claims and to review previous scores for any potential race bias.
The practice made it more difficult for Black retirees to demonstrate a deficit and qualify for an award. The standards were developed in the 1990s in the hopes of providing more appropriate treatment to dementia patients, but critics criticized how they were applied to determine payouts in the NFL concussion case.
Wednesday's announcement comes after a pair of Black players filed a civil rights lawsuit
against the practice, medical experts expressed concerns, and a group of NFL families last month delivered 50,000 petitions to the federal courthouse in Philadelphia — where the lawsuit had been thrown out by the judge overseeing the settlement.
Later, Senior U.S. District Judge Anita B. Brody took the unusual step of requesting a report on the issue, which black retirees hope will include a breakdown of the nearly $800 million in payouts so far by race, as they fear the data will never be released.
“Words are cheap. Let’s see what they do,” said former Washington
running back Ken Jenkins, whose wife Amy Lewis spearheaded the petition drive on behalf of NFL colleagues suffering from cognitive issues. Jenkins, an insurance
executive, has so far been spared.
According to the NFL, a panel of neuropsychologists recently formed to propose a new testing regime to the court consists of two female and three Black doctors.
“The replacement norms will be applied prospectively and retrospectively for those players who would have otherwise qualified for an award but for the application of race-based norms,” NFL spokesman Brian McCarthy said in a statement released Wednesday.
Christopher Seeger, the lead players' lawyer who negotiated the 2013 settlement with the NFL, stated earlier this year that he had seen no evidence of racial bias in the administration of the settlement fund, but he amended those statements Wednesday, apologizing for any pain the program has caused.
“I am sorry for the pain this episode has caused Black former players and their families; however, this settlement will only work
if former players believe in it, and my goal is to regain their trust and ensure the NFL is fully held accountable,” Seeger said in a statement.
The NFL stated that the standards were developed in medicine “to stop bias in testing, not to perpetuate it,” and that the practice was never mandatory, but rather left to the discretion of doctors participating in the settlement program.
However, if Black players' scores were not adjusted for race, the NFL appealed some of their claims.
“It never would have come to be if it hadn’t been for the wives, who were enraged by all the red tape involved,” Jenkins said of the attention being paid to the issue, three years after lawyers for former Pittsburgh
Steelers Kevin Henry and Najeh Davenport claim they first raised it.
When binary race norms are used in testing, it is assumed that Black patients begin with lower cognitive function than whites and other non-Blacks, making it more difficult for them to demonstrate a deficit and qualify for an award. Henry and Davenport, for example, were denied awards but would have qualified if they had been white, according to their lawsuit, which Brody dismissed in March, calling it "unlawful."
According to the most recent report, more than 2,000 NFL retirees have filed dementia claims, but only about 600 have received awards. According to lawyers involved in the litigation, more than half of all NFL retirees are Black.
So far, the awards have averaged $516,000 for the 379 players with early-stage dementia and $715,000 for the 207 players with moderate dementia. Retirees can also seek payouts for Alzheimer's disease and a few other diagnoses.