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The NFL reportedly recently pledged to halt the use of “race-norming,” which assumes Black players started out with lower cognitive function, in the $1 billion settlement of brain injury claims and review past scores for any potential race bias. The announcement comes after a pair of Black players filed a civil rights lawsuit over the practice, medical experts raised concerns, and a group of NFL families last month dropped 50,000 petitions at the federal courthouse in Philadelphia where the lawsuit had been thrown out by the judge overseeing the settlement.
Race-norming made it harder for retired Black players to show a deficit and qualify for an award. The standards were created in the 1990’s in hopes of offering more appropriate treatment to dementia patients, but many people criticized the way they were used to determine payouts in the NFL concussion case.
The binary race norms, when they are used in the testing, assume that Black patients start with worse cognitive function than white people and other non-Black people. Black players must therefore score much lower than whites to show enough mental decline to win an award. The practice, which went unnoticed until 2018, has made it harder for Black former players to get awards.
Former Pittsburgh Steelers Kevin Henry and Najeh Davenport, for instance, were denied awards but would have qualified had they been white, according to their lawsuit. Judge Anita B Brody dismissed it in Mar., however, calling it an improper “collateral attack” on the settlement. They have appealed the ruling.
Race norming is sometimes used in medicine as a rough proxy for socioeconomic factors that can affect someone’s health. Experts in neurology have reportedly said the way it’s used in the NFL settlement is too simplistic and restrictive, and has the effect of systematically discriminating against Black players. “Because every Black retired NFL player has to perform lower on the test to qualify for an award than every white player. And that’s essentially systematic racism in determining these payouts,” Katherine Possin, a neurology professor at the UCSF Memory and Aging Center, told the AP.
More than 2,000 NFL retirees have reportedly filed dementia claims, but fewer than 600 have received awards. Also, more than half of all NFL retirees are Black. So far, the awards have reportedly 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. The settlement ended thousands of lawsuits that accused the NFL of long hiding what it knew about the link between concussions and traumatic brain injury.
According to the NFL, a panel of neuropsychologists was formed recently to propose a new testing regime to the court, which includes two female and three Black doctors. “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 reportedly said in a statement by spokesman Brian McCarthy.
The NFL noted that the norms were developed in medicine “to stop bias in testing, not perpetrate it.” The league has also said the practice was never mandatory, but left to the discretion of doctors taking part in the settlement program. However, the NFL appealed some claims filed by Black players if their scores were not adjusted for race.
“If it wasn’t for the wives, who were infuriated by all the red tape involved, it never would have come to be,” former Washington running back Ken Jenkins reportedly said of the attention being paid to the issue, three years after lawyers for former Pittsburgh Steelers Kevin Henry and Najeh Davenport say they first raised it. His wife Amy Lewis led the petition drive on behalf of retired NFL players struggling with cognitive problems.
Judge Brody took the rare step of asking for a report on the issue. Black retirees hope it will include a breakdown of the nearly $800 million in payouts so far by race, which they fear the data will never surface.