NFL agrees to end race-based adjustments to dementia tests used to evaluate concussion claims

October 20, 2021

PHILADELPHIA – The NFL has agreed to end race-based adjustments to dementia tests that critics say made it difficult for black retirees to qualify for awards in the billion-dollar settlement for concussion claims, according to a proposed settlement filed Wednesday in federal court.

The revised test plan follows public outrage over the use of “racial norms,” ​​a practice that came to light only after two former NFL players filed a civil rights lawsuit in 2019. The adjustments, critics say , they may have avoided hundreds of black players suffering from dementia to win prizes averaging $ 500,000 or more.

Black retirees will now have the opportunity to have their tests re-scored or, in some cases, seek a new round of cognitive tests, depending on the agreement.

“No racial norms or racial demographic estimates, whether black or white, will be used in the settlement program going forward,” the agreement said.

The proposal, which has yet to be approved by a judge, follows months of closed-door negotiations between the NFL, class attorneys for the retired players and attorneys for the black players who sued, Najeh Davenport and Kevin Henry.

The vast majority of the league’s players – 70% of active players and more than 60% of living retirees – are black. Therefore, the changes are expected to be significant and potentially costly for the NFL.

To date, the fund has paid $ 821 million for five types of brain injuries, including early and advanced dementia, Parkinson’s disease, and Lou Gehrig’s disease, also known as ALS.

Lawyers for black players suspect that white men rated for prizes two to three times higher than black men. It’s unclear if a racial breakdown of the payments will ever be made or made public.

Black NFL retiree Ken Jenkins and others have asked the Justice Department’s Civil Rights Division to launch an investigation. The first payments were made in 2017. The fund, now capped, is intended to last 65 years, to cover anyone who is retired at the time it is first approved.

To date, around 2,000 men have applied for dementia awards, but only 30% have been approved. In some cases, the NFL appealed the payments awarded to black men if the doctors did not apply the racial adjustment. The new plan would ban any challenge based on race.

“The NFL should be really infuriated by the race rule … That should be unacceptable to them and all of their sponsors,” Roxanne “Roxy” Gordon of San Diego, the wife of a former disabled player, previously said. week.

Amon Gordon, a Stanford University graduate, finds himself unable to work at age 40. They have twice qualified for an advanced insanity award only to have the decision overturned for reasons that are not yet clear to them. His case remains under review in the federal court of appeals in Philadelphia.

The NFL would not admit any wrongdoing under the terms of the new agreement.

The league had agreed in June, amid the uproar, to halt the use of racial norms, which assumes that black players start out with lower cognitive function. That makes it more difficult to show that they have a mental deficit related to their playing days.

The binary scoring system in dementia tests, one for black people, one for everyone else, was developed by neurologists in the 1990s as a crude way of taking into account a patient’s socioeconomic background. Experts say it was never designed to determine payments in a court settlement.

More than 20,000 NFL retirees or their family members have signed up for the settlement program, which offers monitoring, testing and, for some, compensation. Prizes average $ 715,000 for those with advanced dementia and $ 523,000 for those with early dementia.

“If the new process eliminates racial norms and more people qualify, that’s great,” said Jenkins, who does not have a disability 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 NFL demographic information – who ran, who was paid.”

United States Chief District Judge Anita B. Brody, who has overseen the settlement for about a decade, dismissed the lawsuit brought by Davenport and Henry earlier this year on procedural grounds. But then he ordered the attorneys who brokered the 2013 settlement – New York plaintiffs’ attorney Christopher Seeger for the players and Brad Karp for the NFL – to work with a mediator to address it. Meanwhile, the Gordons and other NFL families wait.

“His life is ruined,” Roxy Gordon said of her husband, who spent several years in the league as a defensive tackle or defensive end. “He’s an educated 40-year-old man who can’t even use his skills. It’s been horrible.”