In December of 2016, the Supreme Court refused to hear an appeal of a lower court’s ruling in a settlement case, clearing the way for the NFL’s estimated $1 billion settlement over concussion-related lawsuits with retired players to commence.
Some cheered but others fumed as it left many questions unanswered.
How did the league deal with head trauma? What about CTE (chronic traumatic encephalopathy), the condition that affected former players such as Junior Seau, Dave Duerson, Aaron Hernandez, and possibly Vincent Jackson?
Critics also felt the deal favored currently injured retirees and left those who hadn’t yet been diagnosed with potential neurological diseases.
But one of the most significant elements quietly left unaddressed was the issue of race norming.
Race norming sets different standards for white and Black athletes. According to the AP, it assumes that “Black athletes start with worse cognitive functioning than white people, which means that it’s harder for them to show a deficit.”
In technical terms, it adjusts values for health or organ functioning in Black subjects based on either a white norm or on different standards for Black and white subjects. So instead of utilizing a single standard, like in the September 11th Victims Compensation Fund, the race norming scoring system creates a bias through differentiation and separation. This makes it harder for Black players to qualify for awards from the settlement.
This was challenged by lawyer Cyril V. Smith, who represented former players Kevin Henry and Najeh Davenport.
Henry’s first test showed he suffered from serious cognitive impairment. The NFL denied his claim and when he took a race normed second test, less cognitive loss was determined. Davenport suffered the same result after his second test was race normed as well.
Smith said race norming is a deterrent against Black players qualifying for awards larger than the average of $500,000. Unfortunately, a federal judge dismissed the lawsuit this past March and ordered the parties to settle it through mediation.
“We are deeply concerned that the Court’s proposed solution is to order the very parties who created this discriminatory system to negotiate a fix,” said Smith in March. “The class of Black former players whom we represent must have a seat at the table and a transparent process.”
Smith filed a notice of appeal after the ruling. Meanwhile his clients are suffering.
Fighting Back
This discriminatory practice wasn’t noticed until 2018, two years after the settlement was allowed to proceed. Afterward, the fight against the practice, which is not mandatory but up to the discretion of the testing staff, has increased but faces challenges.
Christopher Seeger is the lead lawyer for more than 20,000 retirees covered by the settlement. While he acknowledges the pain it’s caused, he said that he hasn’t seen any evidence of racial bias in the testing.
Yet the fact that race norming in the testing exists is the primary problem for Black players.
Last week former Washington running back Ken Jenkins, and his wife Amy Lewis handed over 50,000 petitions disparaging the discriminatory testing. The demands for equal treatment for Black players were delivered to Senior U.S. District Judge Anita B. Brody in Philadelphia, who is overseeing the settlement.
Jenkins, Lewis, and their supporters are fighting against the NFL’s insistence on using a scoring algorithm in the dementia test that, per the AP, “assumes Black men start with lower cognitive skills.” This decreases the odds of Black former players obtaining awards from the massive settlement as they must score much lower than white players to demonstrate mental decline.
Race norming is another frustrating, discriminatory and damaging practice that negatively impacts Black people. Neurology experts feel its usage in the NFL settlement is restrictive, simplistic and systematically discriminatory 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,” said Katherine Possin, a neurology professor at the UCSF Memory and Aging Center.
The frustration over systematic racism is something Jenkins is all too familiar with.
“My reaction was, ‘Well, here we go again,’” said Jenkins. “It’s the same old nonsense for Black folks, to have to deal with some insidious, convoluted deals that are being made.”
Judge Brody, who in March dismissed the previously mentioned Cyril V. Smith’s lawsuit, did acknowledge the testing raised “a very important issue”. In April, she assigned a magistrate to compile a report on the issue. That report is ongoing with no deadline yet determined.
Black players make up the majority of the league’s 20,000 retirees. Yet according to the AP, approximately only a quarter of the over 2,000 players seeking awards for early to moderate dementia have qualified for it under the current test. In addition, the league has yet to furnish lawyers for Black players details on how the $800 million in settlements have been distributed among racial demographics.
Seeger has acknowledged the obstacles facing Black players through the test’s algorithms and said he would fight for players affected by the current testing methods.
“We are investigating whether any claims have been impacted by a physician’s decision to apply such an adjustment. If we discover an adjustment has been inappropriately applied, I will fight for the rights of Black players to have those claims rescored,” said Seeger.
Race Norming, Medicine, Money and History
Race norming and medicine have a long relationship that is magnified by the protests over the healthcare system’s racist characteristics and practices. It’s a system that hampers, harms, and excludes Black people from obtaining equal treatment in health-related matters.
Race norming can provide excuses that disguise the truth. This is evidenced by the police’s blaming of the sickle cell trait in Black victims of police brutality. Derek Chauvin’s attorney’s made this attempt (and failed) during his client’s trial in the murder of George Floyd.
While it assists in evading responsibility, race norming can also be used in financial matters. Case in point, the $1 billion NFL settlement.
“Race-norming may have had a benign origin, but it quickly morphed into a tool that can be used to help the folks in power save money,” said Jenkins.
Appealing cases such as Henry’s and Davenport’s is just one example of money and race norming co-existing, and unfortunately they won’t be the last.
It’s ironic, and frustrating, to know that in the same month that Henry and Davenport had their lawsuit dismissed, the NFL announced their new $113 billion media rights deal. And during a time of racial reckoning, where athletes and stadiums were adorned with “Black Lives Matter” and “Equality”, and Commissioner Goodell publically stated that Black Lives Matter, the League fought to deny coverage for Black players who are suffering from conditions they acquired on the NFL gridiron.
So apparently the caring stops, and the race norming starts, when money is at stake.
