Earlier this year, ABC News reported on a lawsuit against the NFL brought by two Black former players, who alleged the league used “race-norming” to give smaller payouts for dementia to Black athletes as part of a $1 billion settlement over traumatic brain injuries. The horrific and scientifically inaccurate logic for the disparate payouts broke down to the following: Because Black players were assumed to start at a lower level of cognitive functioning than white players, they would need to show more serious cognitive declines than white players to be compensated similarly for their head injuries. The lawsuit alleged the NFL was engaged in racial discrimination.
Back then, the NFL claimed that there was “no merit to the claim of discrimination,” but the league said Wednesday it will halt race-norming following the lawsuit. “Everyone agrees race-based norms should be replaced, but no off-the-shelf alternative exists, and that’s why these experts are working to solve this decades-old issue,” an NFL spokesperson told the AP. “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.”
AP reports the lawsuit was thrown out by the federal judge in the case, who “later took the unusual step of asking for a report on the issue. Black retirees hope it will include a breakdown of the nearly $800 million in payouts so far by race. They fear the data will never come to light.”
The NFL wasn’t alone in defending the policy: Christopher Seeger, the attorney representing ex-players in a major concussion settlement negotiation, said in March that his law firm had “investigated this issue” and did not find “any evidence of racial bias in the settlement program.” But in a Nightline segment running Wednesday night, Seeger issued a mea culpa. “I was wrong,” he said. “I didn’t have a full appreciation of the scope of the problem. You think you know everything. Sometimes you don’t. But the closer I looked, the more I realized that this had to go.”
“I’m really sorry that anybody, any client of mine in this program, has been made to feel that way,” he added. “That is a big mistake. It was a failure of the system. I’m a part of that. But I’m also a part of getting it fixed.”
As ABC News notes, “Seeger is currently locked in confidential negotiations with the NFL after the federal judge overseeing the program ordered both parties into mediation to ‘address the concerns’ about the race-based formula sometimes used to measure cognitive impairment and determine eligibility for compensation.” On Wednesday, Seeger added that he would not approve of a new agreement for concussion payouts unless it has two stipulations correcting the old program: “For me, the only two outcomes here, without a massive war, is elimination of race norms and the ability to go back and look at every claim, every single claim, to determine where it’s been applied. And if it has to be rescored and then compensated, so be it.”
The program initially came to light following a lawsuit in August 2020 filed by two Black former players, Kevin Henry and Najeh Davenport, who allege that the NFL “explicitly and deliberately” discriminated against Black ex-pros in the assessments for who qualified for payouts for head trauma that took place on the field. Henry, a 52-year-old former defensive end for the Pittsburgh Steelers, visited a neuropsychologist and neurologist in 2017 after experiencing chronic memory loss, pain, and depression. A regimen of tests determined that he had “severe” cognitive impairment and “mild dementia,” which should have meant financial restitution from a league in which an estimated 30 percent of players will develop Alzheimer’s, dementia, or other cognitive impairments over their lifetimes. But in 2019, Henry faced another battery of tests, in which the doctor applied the parameters of the NFL’s “full demographic correction.” This second round, in which race-norming was a factor, determined that he would not be eligible for compensation.
“I felt so betrayed and I still feel that way,” Henry told ABC News. “Two different systems. How can that be okay?”