PHILADELPHIA – The National Football League announced it will stop a practice known as “race-norming” – which operated under the assumption that Black players began their football careers with decreased cognitive function as compared to white colleagues – in its handling of the billion-dollar settlement program of brain injury claims brought by former NFL players, and examine past determinations for examples of racial bias.
The plaintiffs sought the ending of race-norming when assessing cognitive impairment data among retired Black and white players and financial restitution to Black players who have been discriminated against by this practice.
Now, they have received their demand.
“We are committed to eliminating race-based norms in the program and more broadly in the neuropsychological community. The parties to the settlement have been working with the magistrate judge and have assembled the leading members of the neuropsychological industry to help identify alternative testing techniques,” NFL spokesman Brian McCarthy said in a statement.
“Everyone agrees race-based norms should be replaced, but no off-the-shelf alternative exists, and that’s why these experts are working to solve this decades-old issue. The replacement norms will be applied prospectively and retrospectively for those players who otherwise would have qualified for an award but for the application of race-based norms.”
The NFL adds it will create a new testing methodology, formed by a panel of neuropsychologists that includes two women and three Black physicians.
The league’s change in direction came in part as a result of a federal discrimination case brought by two retired NFL players against the league, claiming that it manipulated cognitive function data to make it less likely Black players would receive proceeds from the 2016 concussion settlement.
That suit is now pending before the U.S. Court of Appeals for the Third Circuit.
Kevin Henry and Najeh Davenport first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Aug. 20 versus the NFL, of New York, N.Y.
Henry, who played eight years for the Pittsburgh Steelers, and Davenport, who played seven years for the Green Bay Packers, Pittsburgh Steelers and Indianapolis Colts claimed that the NFL violated federal law in handling claims under the concussion settlement, by using different sets of cognitive function data for Black and white players.
This data, according to the plaintiffs, posits that Black players begin with worse cognitive function than white players do, thus making it more difficult to show evidence of cognitive damages for Black players.
Such methodology is not required, according to the settlement terms, but is used at the discretion of the testing physicians.
Henry and Davenport asserted that race-norming has made it far more difficult for retired NFL players who are Black to receive payouts for cognitive impairment under the terms of the concussion settlement, detracting from one of the main purposes of the agreement.
On Nov. 2, the NFL filed a motion to dismiss the case for failure to state a claim.
However, U.S. District Court for the Eastern District of Pennsylvania Judge Anita B. Brody, the presiding judge over the NFL’s concussion settlement, granted the league’s dismissal motion at a hearing on March 8 – and further ruled that lead plaintiff counsel from the original settlement, the law firm Seeger Weiss, and the NFL were to instead participate in mediation to resolve their issues pertaining to the practice of “race-norming.”
That mediation would seem to exclude the Black players who sued the league.
The same day as Brody’s ruling, Smith filed an appeal to the Third Circuit.
Brody had taken the unusual step of asking for a report on the issue of race-norming. Retired Black players hope it will include a racially-based breakdown of the nearly $800 million in payouts distributed so far, as they are fearful that data will never come to light.
Christopher Seeger, lead counsel for the retired NFL players who negotiated the 2013 settlement with the NFL, initially said in March that he had not seen any evidence of racial bias in the administration of the settlement fund. However, Seeger changed course on Wednesday, apologizing for his earlier statement.
“I am sorry for the pain this episode has caused Black former players and their families. Ultimately, this settlement only works if former players believe in it, and my goal is to regain their trust and ensure the NFL is fully held to account,” Seeger said in a statement.
Currently, the NFL concussion settlement has paid more than $800 million to retired players for neurocognitive problems connected to concussions, including about $335 million for dementia.
Payments are expected to exceed $1 billion, long before the 65-year settlement plan ends.
According to a report issued this week, over 2,000 NFL retirees have filed dementia claims, but less than 600 have received awards.
Over 50 percent of all NFL retirees are Black, per lawyers involved in the litigation.
Compensation awards distributed to this point have averaged $516,000 for the 379 players diagnosed with early-stage dementia, and $715,000 for the 207 players diagnosed with moderate dementia.
Retired NFL players may also seek compensation if they have been diagnosed with Alzheimer’s disease and a select group of other illnesses.
For counts of deprivation of equal rights under the law, the plaintiffs are seeking a declaration that the complained-of conduct is illegal under federal law, compensatory damages for pain, suffering, embarrassment and humiliation, but not including their lost benefits under the agreement, punitive damages, attorneys’ fees and expenses under statutory or common law, such other relief at law or in equity that the Court may deem just and proper, and a trial by jury.
The plaintiffs are represented by Aitan D. Goelman, Ezra B. Marcus, Steven N. Herman and Cyril V. Smith of Zuckerman Spaeder in Washington, D.C. and Baltimore, Md., plus Edward S. Stone of Edward S. Stone Law and J.R. Wyatt Jr. of Wyatt Law, both in New York, N.Y.
The defendants are represented by Brad S. Karp, Bruce Birenboim, Claudia L. Hammerman and Lynn B. Bayard of Paul Weiss Rifkind Wharton & Garrison in New York, N.Y., plus Sean P. Fahey of Troutman Pepper Hamilton Sanders, in Philadelphia.
U.S. Court of Appeals for the Third Circuit case 21-1434
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-04165
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com