June 10, 2021 – NFL Says It Will End Use of “Race-Norming” as Part of Concussion Settlement Claim Assessments
The NFL has said it is committed to ending the use of “race-norming” to test baseline cognitive levels as part of the assessment of former Black players’ brain injury claims in the $1 billion concussion settlement.
TheAssociated Pressreports the NFL will alsoreview past cognitive scoresfor any potential race bias, as the practice of “race-norming,” which through statistical manipulation assumed Black players started out with lower cognitive functioning than white players, made it more difficult to qualify for a piece of the settlement. In a statement, the NFL said it is “committed to eliminating race-based norms in the program and more broadly in the neuropsychological community” and added it is working with an attorney for theclass of former playersto put together a new assessment program with consultation from a panel of eight leading neuropsychologists.
“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 league said. “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.”
Earlier this year, the NFL and an attorney for the class of former players were ordered by U.S. District Judge Anita Brody to report on how race-norming was being used in the administration of the massive concussion settlement in the wake of the filing of the proposed class action detailed on this page. Law360 reports that the plaintiffs in the lawsuit, former Pittsburgh Steelers players Kevin Henry and Najeh Davenport, have been allowed by a Pennsylvania federal judge tojoin the court-ordered talksbetween the NFL and the concussion class attorneys over the use of race-based cognitive testing norms.
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March 17, 2021 – Lawsuit Dismissed by Judge Overseeing Massive NFL Concussion Settlement
The federal judge overseeing the NFL concussion settlement has dismissed the proposed “race-norming” class action detailed on this page while ordering the league and attorneys for the class of former players to review the concerns brought up by the plaintiffs.
United States District Judge Anita B. Brody, in a two-page order submitted March 8, granted the NFL’s motion to dismiss the case while deeming as moot the plaintiffs’ request for limited preliminary discovery. Judge Brody wrote, however, that the court “remains concerned about the race-norming issue” and thus ordered the original parties who drafted the concussion settlement to seek to address related concerns.
The plaintiffs have appealed the dismissal, court records show.
A proposed class action lawsuit alleges the National Football League has sought to avoid paying Black former players a piece of the massive concussion settlement by way of statistically skewing a battery of cognitive tests on the basis of race.
The retired players behind the 15-page lawsuit, Kevin Henry and Najeh Davenport, allege that when being evaluated for the qualifying diagnoses of neurocognitive impairment, Black former players are automatically assumed to have started with worse cognitive function than white former players via a statistical manipulation called “race-norming.”
As a result, a Black former player who receives the exact same raw scores as a white former player on tests that measure current cognitive functioning is presumed to have suffered less impairment and therefore less likely to qualify for compensation through the settlement, the lawsuit says.
“The NFL’s actions were designed to, and did, make it far more difficult for Black retirees to receive benefits for the brain injuries which are a routine result of playing pro football,” the plaintiffs allege. “But even in cases where the Defendants’ actions did not prevent Black retirees from receiving benefits, those actions harmed every member of the proposed class by subjecting them to intentional discrimination on the basis of race.”
The lawsuit, filed against the NFL and NFL Properties, LLC as successor-in-interest to NFL Properties, Inc., relays that several estimates peg the number of current pro football players who are Black at 65 to 70 percent, with the same majority in place for the concussion settlement class.
“The NFL’s scheme—executed through the League-sponsored Settlement Agreement—is particularly insidious because it presumes Black retirees to be less intelligent than their non-Black fellow retirees,” the lawsuit says.
According to the case, the NFL’s enforcement of the settlement agreement “treats the League’s Black retirees as second-class citizens” and, worse, presumes that their pre-football cognitive abilities were lower than those of white players. It’s this presumed inferiority, the lawsuit says, that’s used to “explain away and to avoid paying compensation” for Black NFL retirees’ post-football neurocognitive issues, the suit says.
Still further, even when Black retirees are able to “surmount the obstacle erected by the NFL, and receive benefits,” the former players are “subjected to the same discriminatory acts by the League” via the manipulation of their cognitive test scores, the complaint alleges.
In all, the lawsuit contests the NFL’s broad aim is to reduce the total cost of benefits paid to members of the concussion settlement class, in part by taking a large chunk out of the compensation owed to Black retirees “who today make up a majority of both the Settlement Class and the NFL’s workforce.”
In 2015, a federal judge granted approval to an uncapped settlement in multidistrict litigation between the NFL and approximately 5,000 former players who sought compensation for concussions and degenerative neurological disorders due to the repeated head impacts common in professional football. Since the deal’s approval, the specifics of the settlement have been the subject of a fair amount of controversy.
According to Law360, the NFL has described the plaintiffs’ lawsuit as “entirely misguided” and defended its use of what it referred to as “recognized statistical techniques to account for demographic differences such as age, education and race.”
“The point of such adjustments—in contrast to the complaint’s claims—is to seek to ensure that individuals are treated fairly and compared against comparable groups,” NFL spokesperson Brian McCarthy told Law360. “But the settlement agreement does not require the use of any particular adjustments, and instead leaves their use to the sound discretion of the independent clinicians administering the tests in any particular case.”
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