Yesterday the NFL and lawyers for retired NFL players reached an agreement to end “race norming” in testing in the 2016 $1 billion settlement over concussion claims.
The agreement was filed Wednesday in federal court.
Race norming assumes Black athletes start at a lower cognitive functioning level than white athletes. So in tests used by the NFL to determine cognitive impairment and/or damage, Black players had a harder time showing any deficit from concussions.
That meant that Black players who were suffering from adverse health conditions due to concussions were prevented from financial awards, which averaged $500,000 or more, through the settlement for treatment.
It’s a practice that added to Black pain felt by players and their families.
In this new agreement, according to The New York Times, Black retirees will have the opportunity to have their tests rescored or, in some cases, have a new round of cognitive testing done.
The proposal must be approved by a judge, but at least the two parties have agreed to remove the biased testing.
“We look forward to the court’s prompt approval of the agreement, which provides for a race-neutral evaluation process that will ensure diagnostic accuracy and fairness in the concussion settlement,” said NFL lawyer Brad Karp in a statement.
The inclusion of race norming went unnoticed until 2018, two years after the 2016 landmark settlement was reached.
That’s when attorney Cyril V. Smith, who represented former players Kevin Henry and Najeh Davenport, stepped in.
In August of 2020, Smith filed a class-action lawsuit against the NFL on behalf of his clients who were not only suffering but whose claims were rejected after race normed tests.
The original tests for both Henry and Davenport showed serious cognitive impairment. The NFL denied the claim and made them take a second test, which was race normed, and that showed less damage.
As a result, both of their claims were denied.
This past March, the judge presiding over the case rejected the lawsuit and ordered them to resolve the issue through mediation.
Two months later in May, former Washington running back Ken Jenkins, and his wife Amy Lewis delivered over signed 50,000 petitions to Senior U.S. District Judge Anita B. Brody in Philadelphia, who was overseeing the case. The petitions disparaged the discriminatory testing and demanded its end.
“My reaction was, ‘Well, here we go again,’” said Jenkins at the time. “It’s the same old nonsense for Black folks, to have to deal with some insidious, convoluted deals that are being made.”
Jenkins couldn’t have put it any better.
70% of active NFL players, and more than 60% of living league retirees, are Black, so it’s obvious to see how impactful and detrimental race norming could be to Black players.
It’s a ridiculous burden suffering Black players should never have been forced to carry, one that exposed another layer of systematic racism in sports that many deny exists.
But it does.
“(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.
These payouts have totaled $821 million to date, and cover five types of brain disease including, Parkinson’s, all forms of dementia and Lou Gehrig’s disease, also known as ALS.
While the demographic allocation of the payouts is unclear, lawyers for the Black players feel that white players were awarded payouts anywhere from two to three times the rate for Black players.
After the recent Jon Gruden email scandal and the NFL’s statement that “no other current personnel” have sent emails like the ones Jon Gruden did, it’s not hard for everyone to echo those sentiments.
That’s why Jenkins has asked the Civil Rights Division of the Justice Department to investigate.
“If the new process eliminates race-norming and more people qualify, that’s great,” said Jenkins, who does not have an impairment but advocates for those who do.
“(But) we’re not going to get everything we wanted,” Jenkins, an insurance executive, said Tuesday. “We want full transparency of all the demographic information from the NFL — who’s applied, who’s been paid.”
Under the new agreement, which states that the new testing formula was developed in conjunction with a panel of experts, the mandate is clear.
“No race norms or race demographic estimates — whether Black or white — shall be used in the settlement program going forward,” the proposal said.
But for those who have been in pain while waiting, it’s now a new time of waiting where they must again hope that they get approved to receive the treatment they need and deserve.
