The National Football League (NFL) has pledged to halt the use of “race-norming” – a process that assumed Black players started out with lower cognitive functioning – when deciding whether to provide retired players with compensation for brain injury claims.
The standards were designed in the 1990s in hopes of offering more appropriate treatment to dementia patients, but critics faulted the way the NFL used them to assess legal damages, saying it was harder for Black American football players to show a deficit and qualify for an award.
Keep readinglist of 3 items
Wednesday’s announcement comes after a pair of retired Black players filed a civil rights lawsuit over the practice, which had been used to determine payouts as part of a $1bn settlement reached between the NFL and players in 2013.
Medical experts had also raised concerns and a group of NFL families last month dropped 50,000 petitions at the federal court in Philadelphia, where the civil rights lawsuit had been thrown out by the judge overseeing the settlement.
Senior US District Judge Anita B Brody later took the unusual step of asking for a report on the issue. Black retired players hope it will include a breakdown of the nearly $800m in payouts so far by race, but they have raised concerns the data will never come to light.
“Words are cheap. Let’s see what they do,” said former Washington running back Ken Jenkins, whose wife Amy Lewis led the petition drive on behalf of NFL friends struggling with cognitive problems. Jenkins, an insurance executive, has so far been spared.
According to the NFL, a panel of neuropsychologists formed recently to propose a new testing regime to the court includes two female and three Black doctors.
“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,” the NFL said in a statement issued on Wednesday by spokesman Brian McCarthy.
Lead players lawyer Christopher Seeger, who negotiated the 2013 settlement with the NFL, said earlier this year that he had not seen any evidence of racial bias in the administration of the settlement fund.
He amended those remarks on Wednesday, apologising for any pain the programme has caused.
“I am sorry for the pain this episode has caused Black former players and their families. 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,” Seeger said in a statement.
Both Seeger and the NFL say the practice was never mandatory but left up to the discretion of doctors taking part in the programme. However, the NFL appealed some claims filed by Black players if their scores were not adjusted for race.
“If it wasn’t for the wives, who were infuriated by all the red tape involved, it never would have come to be,” Jenkins said of the attention being paid to the issue, three years after lawyers for former Pittsburgh Steelers lineman Kevin Henry and former Steelers and Green Bay Packers running back Najeh Davenport say they first raised it.
The binary race norms, when they are used in the testing, assume that Black patients start with worse cognitive functioning than white and other non-Black people.
In their lawsuit, Henry and Davenport argued they were denied awards but would have qualified had they been white.
Brody, the judge, dismissed their claim in March, calling it an improper “collateral attack” on the settlement. The former players have appealed the ruling.
More than 2,000 NFL retirees have filed dementia claims, but fewer than 600 have received awards, according to the most recent report. More than half of all the NFL retirees who filed claims are Black, according to lawyers involved in the litigation.
The awards so far have averaged $516,000 for the 379 players with early-stage dementia and more than $715,000 for the 207 players with moderate dementia. Retirees can also seek payouts for Alzheimer’s disease and a few other diagnoses.
The settlement ended thousands of lawsuits that accused the NFL of long hiding what it knew about the link between concussions and traumatic brain injury.
The majority of the players currently in the NFL are Black and the league has recently dealt with high-profile racial issues.
In 2016, then-San Francisco 49ers quarterback Colin Kaepernick, who is Black, kneeled during the national anthem to protest against police brutality and racial injustice. Other players followed suit, and Kaepernick’s act of protest became a political flashpoint with Donald Trump criticising the players.
Kaepernick and fellow player Eric Reid eventually found themselves out of American football and subsequently sued the NFL, complaining the league blacklisted them for their protests.
The NFL settled with the players in 2019 and the league’s commissioner later apologised for not encouraging players to peacefully protest.