The Hits Keep Coming: NFL Settles in Race-Norming Suit

If you’ve seen the 2015 movie Concussion starring Will Smith then you’re well-aware of the NFL’s (mis)handling of brain injuries involving former players. For years the NFL attempted to cover-up and deny the severity of brain trauma caused by the sport. Finally in 2011, after several high-profile suicides and a swarm of personal injury claims filed by former NFL players, the league could no longer bury their head in the sand to the trauma-induced reality. The league entered into to a compensation settlement agreement with former players to pay athletes who suffered from brain injuries due to the violent nature of the sport.

Under the settlement agreement, a former player who has a “qualifying diagnosis” is eligible for a payout. The qualifying diagnoses were listed as Dementia, Alzheimer’s, Parkinson’s, ALS, and CTE. Notably, the NFL laid out a set of procedures that a retiree had to complete that would “allow” them to qualify for compensation after being diagnosed by an NFL-approved physician.[1]

So if we revisit that depressing 2015 Will Smith movie – an overly optimistic viewer could tell themselves that after years of suffering and being lied to, NFL players were finally getting a sense of justice. Their pain and suffering would be recognized by the NFL and they were set to receive compensation. This story had a semblance of a satisfying ending, albeit taking a demoralizing route to get there. Since the settlement agreement was reached in 2011, nearly a billion dollars has been paid out to NFL retirees for neurocognitive problems linked to NFL concussions.

But as it turns out, the latest NFL settlement could make for a compelling sequel to Concussion.

In a story predicated on the NFL being forced to “tell the truth”, it seems that the NFL’s enforcement of their settlement agreement has been filled with race-norming tactics that led to former Black athletes receiving less compensation than their White counterparts. When confronted with the issue, much to the surprise of no one, the league lied and denied these practices were occurring.[2]

Najeh Davenport and Kevin Henry, two Black NFL retirees, brought a civil lawsuit against the league in which they alleged race-norming tactics were being used when evaluating retired players for Dementia. This binary scoring system in Dementia testing ­– one for Black people, one for everyone else – was developed in the 1990s as a crude and controversial way for neurologists to factor in a patient's socioeconomic background. However, experts claim it was never meant to be used to determine payouts in a court settlement.

The complaint, which can be found here, states “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.”[3]

In simplest terms, for a retiree to qualify for compensation under the settlement agreement they must be evaluated by a physician. These physicians were commonly provided by the NFL. Physicians must then diagnose the retiree with one of the specified brain traumas that demonstrate they are suffering from enough debilitating brain damage to qualify for compensation. These procedures were put into place to gatekeep who receives compensation under the settlement agreement and to set standards for the NFL to recognize that a player was experiencing enough harm.

To properly evaluate the level of brain trauma a retiree had suffered, the physician would have to estimate the cognitive ability the athlete had before playing football. Throughout the settlement process physicians were automatically assuming (through a statistical manipulation called “race-norming”) that Black players started with worse cognitive functioning than White players. Therefore, it was more difficult for Black players to prove that football had worsened their cognitive functions. When you are starting from a lower point, it’s easier for a physician (and the NFL) to claim that football didn’t have a significant impact on your brain capabilities. As a result, Black retirees wouldn’t qualify for compensation under the settlement agreement.

When the lawsuit by Davenport and Henry was filed, NFL spokesperson Brian McCarthy categorized the allegations as “entirely misguided”. The allegations can be summarized to this: The NFL, through a settlement process that was put into place after years of denial surrounding head trauma, was now implementing race-norming tactics to manipulate compensation to Black NFL retirees suffering from head trauma.

This story is dark even for the NFL.

Davenport and Henry both suffered a handful of diagnosed concussions throughout their NFL careers. They both currently suffer from symptoms of brain trauma that includes persistent headaches, memory loss, and depression. Even though both NFL retirees struggle performing basic every-day life activities, both were denied compensation under the settlement agreement. In Davenport’s case, he was initially granted qualification by a physician due to the level of cognitive function his brain test showed. However, the NFL appealed and recalculated Davenport’s scores using racial norms. Subsequently, he was denied compensation.

In a decision that was likely celebrated in NFL headquarters, Senior U.S. District Judge Anita B. Brody dismissed Davenport and Henry’s dispute against the NFL and ordered the two sides to mediation.[4] The battle between Black retirees and the NFL would no longer play out in public through court.

After months of closed-door negotiations between the NFL and attorneys representing Black retirees, last week the two sides submitted a proposal to the court in which the NFL agreed to end race-based adjustments in Dementia testing. Interestingly, the settlement agreement will also include that the NFL admits to no wrongdoing.[5] But if you read between the lines, this settlement agreement all but confirms that the NFL was using race-norming tactics to test for Dementia for years.

The deal between the two sides reads, "No race norms or race demographic estimates -- whether Black or white -- shall be used in the settlement program going forward".

Black retirees will now be given the opportunity to have their tests rescored or, in some cases, seek a new round of cognitive testing. But the current deal still allows the NFL to the shield themselves from opening up their books and providing demographics of who’s applied and who’s been paid under the settlement agreement.[6] While this is a win for Black retirees, the NFL will breathe a sigh of relief by sweeping this under the rug as quickly as possible. The NFL has consistently failed to tell the truth. This proposed deal is no different.

Matthew Netti is a 2021 graduate from Northeastern University School of Law. He currently works as an attorney fellow at the Office of the General Counsel for Northeastern University. You can follow him on twitter and instagram @MattNettiMN and find him on Linkedin at https://www.linkedin.com/in/matthew-netti-ba5787a3/.

[1] BBC News, NFL to end race-based testing in dementia claims (last visited Oct. 22, 2021) https://www.bbc.com/news/world-us-canada-58993679. [2] MaryClaire Dale, Lawyers: NFL Concussion Awards Discriminate Against Blacks, AP (last visited Oct. 22, 2021). [3] Complaint Henry v. NFL, 2:20-cv-04165 (E.D. Pa. 2020). [4] Timothy Rapp, Judge Dismisses Lawsuit Challenging “Race-Norming” in NFL Dementia Tests, Bleacher Report, (Mar. 8, 2021). [5] BBC News, NFL to end race-based testing in dementia claims (last visited Oct. 22, 2021) https://www.bbc.com/news/world-us-canada-58993679. [6] Id.