NFL vows to halt practice of using lower cognitive baseline for Black players in brain injury claims

·3 min read

The NFL vowed on Wednesday to halt a practice of using different cognitive baselines for Black and non-Black players when evaluating brain injury claims.

The practice known as "race norming" assumes a lower cognitive baseline for Black players and has been applied as the league considers claims in its $1 billion concussion settlement. Former NFL players Najeh Davenport and Kevin Henry filed a lawsuit in August alleging that the lower baselines led to their claims being denied.

Retired players: 'Race norming' cost them settlements

The practice of "race norming" makes it harder for Black players to show a cognitive deficit in claims of dementia attributed to football-related concussions. If they were white, Davenport and Henry would have been awarded claims based on the separate baselines, according to their lawsuit.

U.S. District Judge Anita B. Brody dismissed the lawsuit while calling it an improper “collateral attack,” a decision Davenport and Henry have appealed.

Pittsburgh Steelers' Najeh Davenport in Pittsburgh.
Najeh Davenport has filed a lawsuit claiming the system for awarding NFL concussion settlements is discriminatory. (AP Photo/Gene J. Puskar, File)

Where did 'race norming' come from?

According to the Associated Press, the standards for the different baselines were based on medical standards developed in the 1990s. Davenport and Henry's lawsuit argues that the practice has “explicitly and deliberately” discriminated against hundreds if not thousands of Black players with claims in the $1 billion settlement, per The New York Times.

A separate magistrate judge is acting as mediator between the NFL and player representative Christopher Seeger in the settlement claims. Brody tasked that judge with addressing "the concerns relating to the race-norming issue.” Seeger negotiated the initial NFL brain injury settlement in 2013.

Henry and Davenport's lawyer Cyril Smith argues that Seeger introduced the concept of race-norming to begin with and questioned his fitness to argue on behalf of retired Black NFL players.

“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,” Smith argued. “The class of Black former players whom we represent must have a seat at the table and a transparent process, so that we are not back in the same place four years from now dealing with another fatally flawed settlement.”

Seeger represents all of the roughly 20,000 retired NFL players in the brain injury settlement. According to AP, he said earlier in 2021 that he saw no evidence of race bias in the dispersion of settlement funds. He apologized Wednesday.

“I am sorry for the pain this episode has caused Black former players and their families," Seeger said, per a statement. "Ultimately, this settlement only works if former players believe in it, and my goal is to regain their trust and ensure the NFL is fully held to account.”

NFL announces new evaluation plan

The NFL announced Wednesday that it has included two women and three Black doctors on a panel to propose a new testing regime.

“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,” NFL spokesman Brian McCarthy said in a statement.

According to AP, 586 of more than 2,000 claims made by retired NFL players have been awarded. Of those, 379 players claiming early stage dementia have received an average of $516,000 while 207 players claiming moderate dementia have received an average of $715,000.

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