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Wednesday, December 7, 2022

Plan Filed to Scrap Race as Factor in N.F.L. Concussion Settlement

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Ahmed Bendary
Ahmed Bendary is reporter at DDDNews a focus on health news.
Kevin Henry, left, and Najeh Davenport accused the N.F.L. of discrimination under the concussion settlement.Credit…Matthew Odom for The New York Times
Credit…Jeffery Salter for The New York Times

After months of haggling, the N.F.L. and lawyers representing Black players who accused the league of discrimination filed a joint proposal that will scrap the use of a race-based method to evaluate dementia claims made by former players in the league’s concussion settlement.

The tentative agreement was filed more than a year after two former players sued the N.F.L. for discrimination. They asserted the league has systematically and secretly denied benefits worth potentially hundreds of thousands of dollars to Black players, criticizing how the league has handled the groundbreaking class action settlement that has paid more than $800 million in claims so far.

The agreement was expected to be filed under seal, pending a review by U.S. District Judge Anita B. Brody in Philadelphia, who has overseen the case since it began in 2012. Her review is expected within weeks. But a copy of the agreement signed by only two of the lawyers involved in the case was posted on the court’s website Wednesday afternoon.

In that 46-page document, the N.F.L. and other parties state that “No Race Norms or Race Demographic Estimates — whether Black or White — shall be used in the Settlement Program going forward” and that no party can appeal claims based on the grounds of race or the use of race norms.

Additionally, a panel of experts will develop new norms that will apply to all future neuropsychological tests under the program, all claims that have not yet been ruled on, and all claims that are currently on appeal in which race norms or race demographic estimates may be at issue.

Brody dismissed the suits brought by Najeh Davenport, a former running back, and Kevin Henry, a longtime defensive end, but in June the N.F.L. promised to remove race as a criterion that doctors can use when reviewing dementia claims. In their initial claim, Davenport and Henry said that while doctors have not been required to consider a player’s race when evaluating his claim, the league often appealed evaluations that did not use race-based benchmarks.

Critics of the settlement claim that after the concussion settlement was approved in 2015, guidelines were introduced without full scrutiny that gave doctors the option of using race-based norms in their evaluations to determine what the athletes’ cognitive skills likely were when they were playing. The norms, which were designed in the 1990s to estimate the impact of socioeconomic factors on a person’s health, relied on a fraught set of assumptions to make connections between race and a person’s cognitive skills.

The race norms used in the tests assume that Black former players start with worse cognitive functioning than white former players. That means a Black player’s cognitive skills would have to fall to lower thresholds than a white former player’s for the Black player to qualify for a payout, or for the Black player to qualify for the same payout as a white player (all else being equal).

N.F.L. players, the critics say, are a distinct group and should be compared to the universe of pro football players, not the general population, to determine if their cognitive skills have declined.

Fewer than 700 of the more than 2,000 dementia-related claims have been approved in the settlement. The settlement also pays former players found to have Parkinson’s disease, Alzheimer’s disease, A.L.S. and chronic traumatic encephalopathy, or C.T.E., which can only be diagnosed posthumously. At least half of all former N.F.L. players are Black and roughly 70 percent of the players now in the league are Black.

Hundreds of former players who had their claims denied will be able to have their test scores reassessed as well. More than 7,000 former players took free neuropsychological and neurological exams as the first step in filing their claims, or to be used as benchmarks should their cognitive and neurological abilities deteriorate in the future. Some of them may have chosen not to file claims based on the results, or may be unaware of how those exams were scored.

According to the document filed on Wednesday, the new method will be used to rescore claims and diagnoses and could potentially result in players receiving a payout for the first time, or a larger payout than originally estimated.

The retrospective rescoring will apply to cases where no impairment was determined, but Black race norms were applied during the player’s neuropsychological test; all dementia claims that were denied and had Black race norms applied; or claims that were denied or reduced because the doctor did not apply Black race norms.

Cyril Smith, a lawyer for Henry and Davenport, asserted that white players’ dementia claims were being approved at two to three times the rate of those of Black players. Smith has been unable to substantiate his claim because, he said, the N.F.L. and the administrator of the settlement have refused to provide any data.

Orran Brown, the administrator, told The New York Times that his database does not track claims by race, and that the claim forms do not include a place to indicate a player’s race.

The norms were not originally designed to be used to assess legal damages.

Senator Cory Booker, Senator Ron Wyden and other members of Congress requested data from the N.F.L. to determine whether Black players were facing discrimination. An ABC News report led more than a dozen wives of Black retired N.F.L. players to send Judge Brody a petition with nearly 50,000 signatures calling for an end to the use of race-based norms.

While some former players have blamed the N.F.L., others have taken aim at Christopher Seeger, the lead lawyer for the entire class in the class action. The players say Seeger knew about the abuse of race-based benchmarks as early as 2018 and did not address the issue. Lawyers for Henry and Davenport asked the court to replace Seeger in March.

Earlier this year, Seeger apologized for not having recognized the problems caused by the use of separate benchmarks for Black and white players and vowed to rid the settlement of potential racial bias.

Ahmed Bendary
Ahmed Bendary is reporter at DDDNews a focus on health news.

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