March 8, 2021
PHILADELPHIA — A federal judge on Monday dismissed a lawsuit that challenged “race-norming” in dementia tests for retired NFL players, a practice that some say makes it harder for Black athletes to show injury and qualify for awards.
A hearing had been set for Thursday. The judge instead ordered the NFL and the lead lawyer in the overall $1 billion settlement to resolve the issue through mediation. That process would appear to exclude the Black players who sued.
“We are deeply concerned that the Court’s proposed solution is to order the very parties who created this discriminatory system to negotiate a fix,” said lawyer Cyril V. Smith, who represents ex-players Kevin Henry and Najeh Davenport, and filed a notice to appeal the dismissal late Monday. “The class of Black former players whom we represent must have a seat at the table and a transparent process.”
The demographic factors that doctors consider during testing for dementia often include race. If so, lawyers say, the testing assumes that Black athletes start with worse cognitive functioning than white people — which means it’s harder for them to show a deficit and qualify for awards. Both Henry and Davenport were denied awards but would have qualified had they been white, according to their lawsuit.
Flags raised on possible NFL concussion bias
Smith hoped to learn the scope of the problem through discovery as the lawsuit progressed, but the dismissal by Senior U.S. District Judge Anita B. Brody in Pennsylvania means he may never know how many Black players lost out on payments because of the practice.
He wants race-norming banned in NFL testing going forward, and cases reviewed if it was used in the past. The awards so far average more than $700,000 for the 203 ex-players diagnosed with moderate dementia and more than $500,000 for the 365 diagnosed with earlier-stage dementia.
NFL spokesperson Brian McCartney said the league is “pleased with the court’s decision” and expects the mediation to address the judge’s concerns about the issue.
Christopher Seeger, the lead lawyer for the more than 20,000 NFL retirees covered by the settlement, said the practice is not mandated under the deal but is left the discretion of the testing physicians.
“We have also opposed appeals filed by the NFL, supporting former players and physicians who found the application of such adjustments were inappropriate,” Seeger said in a statement.
Brody has steered the litigation since the first suits were filed in 2011, alleging that the NFL had long hidden what it knew about the link between concussions and brain injuries. The judge also ordered secret negotiations then that led to the surprise settlement of the case — long before discovery or trial — in 2013.
The settlement fund has so far paid more than $765 million to retired players for neurocognitive problems linked to NFL concussions, including about $335 million for dementia. Payments are expected to top $1 billion long before the 65-year settlement plan ends.
The dementia claims have proved especially contentious. Many of them have been denied, often after challenges from the NFL.
Seeger said he has seen no evidence of racial bias in the settlement program. Still, he said Monday, he is sorry it “opened a painful wound” for some.
Henry, who played for the Pittsburgh Steelers from 1993-2000, said his claim was denied although he suffers from headaches, depression and memory loss that leave him unable to hold a job.
Davenport, who played for the Steelers, Green Bay Packers and Indianapolis Colts from 2002-2008, said he suffered more than 10 concussions, including one that broke his eye socket and left him unconscious. He was approved for an award until the NFL appealed, asking that his test results be recalculated using racial norms, Smith said. By that measurement, his claim would fail.