Here at The Root, we previously questioned whether or not the NFL’s concussion settlement program discriminated against Black players, and now it appears we have our answer.
The point of the contention stemmed from the fact that when former players filed for compensation, they were required to undergo a battery of tests in order to determine their cognitive functioning. Those scores were then compared to specific benchmarks that represent normal cognitive function, and if a player’s score dropped below a certain threshold, they were eligible to receive compensation.
However, because the “norm” for Black players was lower than that of white players, clinicians—and two former players, defensive end Kevin Henry and running back Najeh Davenport, who just so happen to be Black—argued that the concussion settlement program was discriminatory against Black players because it was “explicitly and deliberately” more difficult for Black players to prove cognitive decline.
So now, after months of negotiations, ABC News reports that the NFL and attorneys representing former players have reached an agreement to end “race-norming” in a landmark $1 billion settlement:
The deal, which was filed under seal but obtained by ABC News on Wednesday, also outlines a process for reevaluating past claims for compensation that may have been affected by race-based adjustments to cognitive test scores, which sources familiar with the matter say could result in hundreds of millions of dollars in additional payouts to former players and their families.
According to the 46-page document, the parties agreed that “No Race Norms or Race Demographic Estimates — whether Black or White — shall be used in the Settlement Program going forward, and no party or Claimant shall have the right to appeal a Settlement Claim determination on the ground that Race Norms or Race Demographic Estimates were not applied, nor shall the failure to use Black Race Norms or Black Race Demographic Estimates be used as a basis to deny, reduce, or in any way justify the reduction or denial of a Settlement Claim.”
As a part of the settlement, the league will cut the check for a panel of experts who will continue working on developing “a set of diagnostically accurate, race-neutral, long-term norms” that will eventually replace “the current method of measuring cognitive impairment in former NFL players seeking compensation.” Every claim that was impacted by the prior implementation of race-based adjustments will be rescored using these new protocols.
“The agreement filed with the Court today will ensure that the NFL concussion settlement works fairly and equitably,” Christopher Seeger, the class counsel who’s representing former players in the settlement, told ABC News. “It was reached after hard-fought negotiations overseen by Magistrate Judge David Strawbridge, with the guidance of a diverse group of medical experts and agreed to by the NFL and counsel for intervenors Kevin Henry and Najeh Davenport.
“These changes accomplish what we promised: to eliminate the consideration of race in all the settlement’s diagnostic testing and provide Black former players retesting or rescoring of claims. We look forward to presenting details of these changes to the Court, and engaging with former players about how this agreement will further the goal of providing them the care and support they deserve.”
In what should come as a surprise to no one, the practice of race-norming was previously staunchly defended by both the league and class counsel for former players. But as more and more players and clinicians spoke out against the program, the league and class counsel opted for reform.