This week, a federal appeals court backpedaled away from the race norming controversy that flared up in the NFL’s concussion settlement.
Their decision made a frustrating situation even more infuriating for former Black players and their families who are struggling to receive financial awards to help their suffering.
“The District Court dismissed the motion without prejudice and its order indicates that it is not the final word on the subject of ‘race norming,’” wrote the three judges.
Those judges, Thomas Ambro, Patty Shwartz, and David Porter, decided to let the situation play out instead of wading into the controversy.
This all started back in 2016 when the Supreme Court refused to hear an appeal of a lower court’s ruling in a settlement case. That decision enabled the NFL’s $1 billion settlement over concussion-related lawsuits with retired players to commence
Two years later, the discriminatory practice of race norming in the settlement was brought to light.
Race norming assumes that Black athletes start with lower cognitive functioning than white athletes. So when Black athletes are tested to see if they suffered from concussions, it’s harder for them to show a deficit as they start off at a lower point.
That, in turn, prevents Black players from qualifying for financial compensation from the settlement for treatment.
This practice negatively impacted Black players such as Kevin Henry and Najeh Davenport. Their initial test results showed serious cognitive impairment. Their second tests, which were race normed, showed a smaller cognitive loss.
As a result, their claims were denied.
Their attorney, Cyril V. Smith, challenged the test and practice in 2020. This past March, federal judge Anita Brody dismissed their motions.
While she expressed concern over the practice, she ultimately ordered them 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.”
Four months after her decision, the Appeals Court sided with Judge Brody.
According to The Athletic, a status report on the mediation was due two weeks ago, but the magistrate judge overseeing the negotiations issued a gag order for all parties on July 16th.
Back in June, the NFL and Christopher Seeger, the lead lawyer for more than 20,000 retirees covered by the settlement, agreed to end the use of race norming in the testing.
“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,” said NFL spokesman Brian McCarthy.
Yet despite their decision, questions still remain.
Will Black players who have been tested already, like Henry and Davenport, have to be retested and rescored? And how many Black players were negatively impacted by race normed tests?
While the NFL has not released that number, it’s obvious that there are numbers.
And those Black players are suffering.
