(AP) — Thousands of retired Black professional football
players, their families, and supporters are calling for an end to the NFL
's controversial use of "race-norming" to determine which players are eligible for payouts in the league's $1 billion brain injury settlement, a system that experts say is discriminatory.
Former Washington running back Ken Jenkins, 60, and his wife Amy Lewis delivered 50,000 petitions demanding equal treatment for Black players to Senior U.S. District Judge Anita B. Brody in PHILADELPHIA on Friday, who is overseeing the massive settlement. Former players suffering from dementia or other diagnoses may be eligible for a payout.
The NFL, however, has insisted on using a scoring algorithm on the dementia testing that assumes Black men start with lower cognitive skills, requiring them to score much lower than whites in order to show enough mental decline to win an award. The practice, which went unnoticed until 2018, has made it more difficult for Black former players to receive awards.
“My reaction was, ‘Well, here we go again,’” Jenkins, a former running back, said. “It’s the same old nonsense for Black folks, having to deal
with some insidious, convoluted deals that are being made.” Jenkins is now an insurance executive and is not experiencing cognitive problems, but he has plenty of NFL friends
Brody dismissed a civil rights lawsuit
alleging that the practice is discriminatory in March, but she later stated in a filing that the practice raised “a very important issue” and asked a magistrate judge to compile a report on the issue, which she did not know when it would be completed, according to The Associated Press
The majority of the league's 20,000 retirees are Black, and only a quarter of the more than 2,000 men who sought awards for early to moderate dementia qualified under the testing program. Lawyers for Black players have asked for details on how the $800 million in settlement payouts so far have been distributed based on race, but have yet to receive them.
Race norming is sometimes used in medicine as a rough proxy for socioeconomic factors that can affect someone's health; however, neurology experts say the way it's used in the NFL settlement is overly simplistic and restrictive, and has the effect of systematically discriminating against Black players.
To be eligible for an award, every retired Black NFL player must perform worse on the test than every white player, which amounts to systematic racism
in determining these payouts.
Katherine Possin, UCSF Memory and Aging Center neurology professor
“Because every Black retired NFL player has to perform lower on the test to qualify for an award than every white player, which is essentially systematic racism in determining these payouts,” said Katherine Possin, a neurology professor at the UCSF Memory and Aging Center.
Other major settlements, such as those related to the September 11, 2001, terrorist attacks and the Boston Marathon bombing
, treated all claimants equally.
“We quickly concluded that we would take the top compensation for the white male and everyone would get the same, top dollar,” said lawyer Ken Feinberg, who has overseen many of the largest settlement funds. “We would cure this compensatory discrimination by having a rising tide raise all ships.”
The first lawsuits accusing the NFL of concealing what it knew about the link between concussions and brain damage
were filed in 2011. A trickle quickly became a flood, and the NFL agreed in 2013 to pay $765 million over 65 years for certain diagnoses, including Alzheimer's disease and dementia, rather than risk a trial
According to the claims website, the NFL, which pays the bill, has begun challenging hundreds of claims.
The NFL complained in its appeal of one filed by Najeh Davenport that his doctor had not used “full demographic norms” in the cognitive scoring, which included age, education
— and race.
“I'm not sure what you're talking about. He was done using standard norms like everyone else. Using different racial standards is indeed discriminatory and illegal. We stand by our scores,” the physician responded, according to court documents.
Ultimately, the appeal was reviewed by a pair of University of Pennsylvania legal scholars serving as special masters for Brody. They rejected the original reviewer's finding that race norms were mandatory under the settlement, but they concluded that Davenport's doctor had to explain whether he typically uses them or waived them solely to ensure Davenport received an award.
“Using race-specific norms can be enormously consequential, and the adjustments may often make the difference in a clinician’s determination of cognitive impairment and a determination of normal functioning for retired NFL players seeking benefits,” wrote special masters David A. Hoffman and Wendell E. Pritchett in their Aug. 20 decision.
Days later, Davenport and another former Pittsburgh Steeler, Kevin Henry, filed a civil rights lawsuit, bringing the issue to the public's attention for the first time, with their lawyers hoping to learn how frequently Black players are denied payouts through the litigation.
Instead, Brody dismissed the suit, claiming that they were bound by the settlement because they had not opted out years before. However, as concerns about race-norming grew — and with the 2020 racial unrest still simmering — Brody in April
opened the door to changing the practice when she ordered lawyers for the league and the players back to the table to work out an agreement.
In a court filing, Jennifer Manley, a Columbia University neuropsychologist hired by Davenport's lawyers, described race norms in medicine as "ill-conceived and outdated."
Dr. Robert Heaton developed race-based adjustments for neurology, known as “Heaton norms,” in the early 1990s to estimate how socioeconomic factors affect someone’s health, and they are widely used today; however, scientists in the field have recently begun to recognize the limitations of the normative comparison groups they have used for years.
Heaton's small sample group of Blacks came entirely from San Diego
, a military town where the Black population hardly reflected the diversity
of Blacks across the United States. Racial classifications are also binary — Black or white — despite the fact that hundreds of NFL retirees and millions of Americans identify as mixed race.
'White and Black retired NFL players may be more similar to each other than they are to the reference populations... used to develop Heaton or (other) race-specific norms,' Manley wrote in her brief in the Davenport lawsuit. Several neurology experts have said the NFL's assessment program is flawed, and Possin said UCSF considered participating but decided against it.
“We declined to participate in these evaluations because it just didn’t feel like good clinical practice to us,” Possin explained. “There are probably a number of these players who, the neurologists who evaluated them were pretty sure they had a neurodegenerative disease and dementia, but maybe they didn’t score quite low enough. They didn’t pass the threshold, so they didn’t meet the NFL settle.
Dr. Francis X. Conidi, a neurologist and former president of the Florida
Neurologic Society who has treated hundreds of former NFL players, wrote a critique of the settlement's assessment program in 2018, claiming that it had created a system in which players would be classified with "fictional diagnostic categories" of level 1, level 1.5, and level 2 neurocognitive impairments.
Conidi warned that these categories could leave the patient perplexed about the cause of his symptoms and suggested that they implement a protocol that includes a standard workup for dementia, including neuroimaging and other testing that is not currently included in the assessments.
The NFL's dementia testing evaluates a person's function in two dozen skills divided into five categories: complex attention/processing speed; executive functioning; language; learning and memory; and visual perception, and a player must show a significant decline in at least two of them to be eligible for an award.
In one example provided to The Associated Press, a player's raw score of 19 for "letter-number sequencing" in the processing section was adjusted using "race-norming" to 42 for whites and 46 for blacks.
In the language section, a raw score of 15 for naming animals
became a 35 for whites and a 41 for Blacks, and a raw score of 51 for “block design” in the visual perception section became a 53 for whites but a 60 for Blacks.
Taking the 24 scores together, either a white or black player would have scored low enough to qualify for the settlement's 1.5-level of early dementia in "processing speed." However, in the language section, the scores would have qualified a white man for a 2.0-level, or moderate, dementia finding — but showed no impairment for Blacks.
Overall, the scores would result in a 1.5-level dementia award for whites — but nothing for blacks, with awards averaging more than $400,000 but reaching $1.5 million for men under 45, and 2.0-level dementia awards averaging more than $600,000 but reaching $3 million.
Breton Asken, a neuropsychology fellow at the UCSF Memory and Aging Center, assisted in the administration of several assessments in 2016 while a student at the University of Florida; the assessments took 4 to 6 hours and produced a score, which was then adjusted based on Heaton norms.
“So the male Black athletes we saw would essentially be compared to a group of otherwise healthy Black individuals with a comparable number of years of education and of the same age,” Asken explained.
Even back then, he and his colleagues were concerned that the assessments and adjustments were insufficient.
“I think we were always hesitant to be robotic about this,” Asken said. “We understand from a legal standpoint why there’s a push and a need for making something a little more algorithmic and robotic, that it can be standardized and so on, but I think there’s also a lot of challenges when you take expert clinical decision-making out of things.”
They would report the person's level of impairment in accordance with the "letter of the law," as well as provide comments expressing "anything else we thought was relevant to the patient's brain health, physical health, mental health
, and so forth that we thought would be important for us to include in something like a standard neuropsychological report."
The test battery also included mood and personality questionnaires, but those results were not factored into the compensation algorithm, he said.
“They’re getting full neurologic exams from these neurologists, who are able to pick up on other aspects of the nervous system that might be having problems and so forth, so it feels very strange for us to put together this comprehensive neuropsychological report and just ignore those pieces of data,” Asken recalled.
“Norming by race is not the stance that the NFL should take,” said Dr. Art Caplan, a New York University medical ethicist. “It continues to look as if it’s trying to exclude people
rather than doing what’s right, which is to help people who, clinically, have obvious and severe disability.”
“There has always been this race-norming in medicine that has been problematic because it is too closely linked to racism,” he explained.
Jenkins, a former Washington Redskins player, believes it all comes down to money
“Race-norming may have started out benignly, but it quickly morphed into a tool that can be used to help those in power save money,” he explained.
Caplan, however, is not alone in believing that there is something else at stake here: the NFL's future.
“These could be fights to avoid the conclusion that football is too dangerous, which is always looming in the background,” Caplan said. “This opens the door to a lot of moms saying, ‘I'm not sure that's the right sport for my kid.'”
The league announced an 11-year, $113 billion contract with TV partners in March, the same month Brody dismissed the civil rights lawsuit.
Smith was in Providence, Rhode Island
, at the time.