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Judge Approves Fix to Stem Race Bias in NFL Concussion Deal

Judge Approves Fix to Stem Race Bias in NFL Concussion Deal

According to a new plan agreed Friday, black former football players who were refused benefits for dementia as a part of the NFL’s $1 billion concussion settlement may request to be retested or have their claims rescored in order to avoid racial bias in the testing and payout methodology.

Following outrage over the use of “race-norming” in the dementia testing — which assumed that Black people have a lower cognitive baseline score, making it more difficult for them to show mental declines linked to football — the National Football League and the players’ attorneys returned to the negotiating table last year.

Among other things, the modifications might enable many retired players to resubmit their claims, potentially adding $100 million or more to the NFL’s legal expenses. So far, the NFL has paid out more than $800 million via the fund, with roughly half of that amount going to claims for dementia. The average compensation for dementia is around $600,000.

“Thousands of Black players stand to profit from these revisions to the settlement,” said attorney Cyril V. Smith, who represents former players Najeh Davenport and Kevin Henry, who filed a racial discrimination complaint against the NFL in 2020 and brought the matter to public attention.

Despite the dismissal of their claim, Senior United States District Judge Anita B. Brody in Philadelphia, who has been overseeing the NFL concussion case for a decade, ordered the parties to address the matter. In an order filed on Friday, she gave her approval to the agreed revisions.

For brain injuries related to their playing days, more than 3,300 former athletes or their families have filed claims, with more than 2,000 of them seeking compensation for mild to severe dementia.

The dementia cases have proved to be the most controversial, with just three out of every ten claims being paid thus far. Another one-third of the claims have been dismissed, and the remainder is in limbo, typically because the claim is being reviewed by a number of different parties, including the claims administrator, medical and legal advisors, audit investigators, and even courts.

An example of the difficulties families have had navigating the claims process comes from a recent ruling in which the reviewer bemoaned the lengthy delays experienced by the widow of a former player who was later found to have advanced CTE, also known as chronic traumatic encephalopathy, after his death in 2019.

According to reviewer David Hoffman, his medical records demonstrate “progressive cognitive impairment and unrebutted proof that he was suffering from CTE at the time of his death” when he died.

Nevertheless, according to Hoffman, a contract law specialist at the University of Pennsylvania Law School, “those diagnoses, as well as the accompanying medical papers, do not fall into the settlement’s specified boxes for the asserted qualifying diagnosis (of dementia).”

A standardization process was also applied to the player’s scores, which were adjusted to take into account his race, age, education, and other criteria in accordance with the procedures in place at the time of his death. According to Hoffman, even if his tests were rescored using the new race-blind criteria, his claim would still be ineligible for an award.

70% of current players and more than 60% of live retirees are African-American, which represents a significant proportion of the league’s player population. As a result, the NFL anticipates major and perhaps expensive reforms in the near future.

It took months of secret discussions between attorneys for the NFL, the class counsel representing over 20,000 retired players, and Smith and others representing Davenport and Henry to reach a deal to eliminate race-norming.

Additionally, Ken Jenkins and his wife, Amy Lewis, have worked to bring about the reforms, garnering thousands of petition signatures and urging the Civil Rights Division of the Justice Department to investigate the alleged prejudice in the workplace.

When neurologists devised the binary scoring system used in dementia testing — one for Black people and another for everyone else — they were doing it as a rudimentary approach to account for a patient’s socioeconomic background. According to experts, it was never intended to be used to calculate awards in a court of law settlement.

According to the 2015 settlement, it was accepted by both parties in order to address claims alleging that the NFL was concealing information concerning the dangers of repeated concussions.

Ex-players suffering from Alzheimer’s disease, Parkinson’s disease, and Amyotrophic Lateral Sclerosis will get cash compensation under the 65-year settlement agreement. It excludes coverage for chronic traumatic encephalopathy (CTE), which some refer to as the “signature illness of football,” save for males who were diagnosed with it after their deaths before April 2015, a date designed to prevent rewarding suicides.

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