Judge approves fix to stem race bias in NFL concussion deal

03/05/2022

PHILADELPHIA — Black retired football players who were denied payments for dementia in the NFL’s $1 billion concussion settlement can seek to be retested or have their claims rescored to eliminate racial bias in the testing and payout formula, under a revised plan finalized Friday.

Outrage over the use of “race-norming” in the dementia testing — which assumed that Black people have a lower cognitive baseline score, making it harder for them to show mental declines linked to football — forced the NFL and players’ lawyers back to the negotiating table last year.

The revisions could allow many retired players to resubmit their claims and add $100 million or more to the NFL’s legal tab. The NFL, through the fund, has paid out more than $800 million to date, nearly half for dementia claims. The dementia awards average about $600,000.

“Thousands of Black players stand to benefit from these changes to the settlement,” said lawyer Cyril V. Smith, who represents former players Najeh Davenport and Kevin Henry, whose 2020 race discrimination lawsuit brought the issue to light.

Senior U.S. District Judge Anita B. Brody in Philadelphia, who has overseen the NFL concussion case for a decade, dismissed their lawsuit but ordered the parties to address the problem. She approved the negotiated changes in an order filed Friday.

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

More than 3,300 former players or their families have sought awards for brain injuries linked to their playing days, more than 2,000 of them for moderate to advanced dementia.

The dementia cases have proven the most contentious, and only 3 in 10 claims have been paid to date. Another one-third have been denied, and the rest remain in limbo, often as the claim goes through several layers of review by the claims administrator, medical and legal consultants, audit investigators and judges.

The agreement to end race-norming follows months of closed-door negotiations between lawyers for the NFL, the class counsel for the nearly 20,000 retired players, and Smith and others representing Davenport and Henry.

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