How use of race-norming resulted in denial of former NFL players’ concussion claims

60 Minutes Overtime

September 9, 2021

While the NFL kicks off its season this week, former players are still fighting for payouts from a landmark concussion settlement. Many players and their attorneys believe that they’ve been denied, in part, because of their race.

60 Minutes+ correspondent Wesley Lowery met with some of those players for a new report streaming now, only on Paramount+.

In 2017, after years of denials that football causes cognitive impairment, the NFL began offering payouts as part of a concussion settlement between the league and its former players.

About 3,000 former players have applied for payouts. The first step in qualifying is to be diagnosed with Alzheimer’s, Parkinson’s, ALS or dementia.

Former players, like Clarence Love, undergo a battery of neurological tests with NFL-approved doctors to gauge, among other things, their memory, language and processing abilities.

Love, who won a Super Bowl with the Baltimore Ravens in 2001, was told after nearly eight hours of tests that he showed signs of early dementia. He responded with disbelief.

“I’m young,” Love told Lowery. “You know. That happens to old people. Not young people. You know, I’m 46 now. I mean, I don’t know how– how will I be at 56?”

Love submitted his dementia diagnosis to the outside firm handling claims, hoping to collect the $1.5 million for which he was eligible. The firm approved the claim, but when it went to the NFL for review, they appealed the claim and refused to pay him.

Since the concussion settlement began in 2017, the league has paid out more than $800 million to former players suffering from cognitive impairment. But there remain close to 1,500 concussion claims — about half of those filed — in which players have been denied payouts.

“The more players that are paid under this settlement becomes a data point for the NFL, the NFL does not want those numbers to be high,” said Jason Luckasevic, an attorney representing hundreds of former players seeking payouts. “They don’t want moms and dads to know the true incidence of what happens to people that play football, and what their tendency or likelihood of developing a chronic brain damage over a period of time.”

Even more troubling, the former players and their attorneys say, is that the settlement has been implemented in a way that makes it harder for Black players, who for decades have made up the majority of the league, to get dementia payouts.

To qualify for a dementia payout, former players must prove that they’ve suffered from cognitive decline. But the testing is graded on a curve, known as a race norm — and under those race norms, Black players are assumed to have started with lower intelligence than White players. That means a Black player has to prove a greater amount of cognitive decline in order to get the same payout as a White player.

“And that is the exact reason why these African American former players are not qualifying for these awards,” Luckasevic told Lowery.

“Because the NFL is assuming as a premise that they are dumber than their White colleagues?” Lowery asked.

“Yes, not only them, the entire system that approved this. Everybody that is grading this and looking through these claims, yes, they are all assuming that and applying that playbook,” Luckasevic said.

“It seems pretty explicitly racist,” Lowery replied.

“Absolutely,” Luckasevic said. “There’s no other way to explain it. It’s a violation of somebody’s civil rights.”

In Clarence Love’s case, the NFL argued in its appeal that his test results were “insufficient to establish a diagnosis” because he hadn’t scored low enough on the test.

After learning about “race-norming,” Love’s attorney decided to have his tests rescored. He said the results showed that, had he not been graded on a curve based on his race, Love would have been eligible for a payout.

“I get angry about it,” Love said. “And to have it hidden from us is even worse… you know, it’s unfair. To be scored or judged different than your peers based on your color. It’s like, on the Black athlete’s part, it’s like we gotta be dead. Or damn near dead to be paid out.”

In August 2020, two former players — Green Bay Packer Najeh Davenport and Pittsburgh Steeler Kevin Henry — filed a lawsuit alleging the NFL had been avoiding paying out head injury claims based on a formula that “explicitly and deliberately discriminates on the basis of race.” A judge dismissed the case but directed the former players and the league to a mediation to resolve the issue.

The NFL has since said it’s ditching race norms “not because they have been found to discriminate,” but because they “have recently been called into question in many areas of medicine.”

The league added in a statement to 60 Minutes+ that it is committed to ensuring that any former player whose claim was denied or who received a less severe diagnosis due to race-norming will have their test rescored.

In the meantime, the NFL is still in mediation with the former players who sued after being denied payouts because of race-norming.

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