Judge approves NFL concussion deal to reduce race bias

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Retired black football players can apply to have their claims rescored or to be retested to remove racial bias.

The use of “race-norming in dementia testing — which assumed Black people had a lower cognitive baseline score making it more difficult for them to show signs of mental declines related to football — caused outrage at the NFL and players’ lawyers to return to the negotiation table last year.

These revisions will allow retired players to submit their claims again and could add $100 million to the NFL’s legal tab. Through the fund, more than $800,000,000 has been paid to date by the NFL. Nearly half of these were for dementia claims. Average dementia award is $600,000.

Lawyer Cyril V. Smith said that thousands of Black players will benefit from the settlement changes. Smith represents Najeh Davenport, and Kevin Henry. The issue was brought to light by a 2020 race discrimination lawsuit.

Anita B. Brody, a senior U.S. District Judge in Philadelphia, has been overseeing the NFL concussion lawsuit for over a decade. dismissed the suit, but ordered the parties address the issue. In an order filed Friday, she approved the negotiated modifications.

Over 3,300 ex-players and their families have applied for awards for brain injuries resulting from their playing days. More than 2,000 of these were for advanced to moderate dementia.

Only 3 out of 10 claims for dementia have been paid. Another third of claims were denied and the remainder remain unpaid, often because the claims go through multiple layers of review by the claim administrator, medical and legal experts, judges, and audit investigators.

One recent ruling demonstrates the difficulties families face in navigating the claims process. The reviewer lamented the lengthy delays faced by the widow of a former player who was found to have CTE (chronic traumatic encephalopathy) after his 2019 death.

David Hoffman, a reviewer, wrote that his medical records showed “progressive cognitive decline” and “unrebutted evidence that CTE was present at the time of his passing.”

Hoffman, a specialist in contract law at University of Pennsylvania, stated that these diagnoses and supporting medical records do not fit within the settlement’s boxes for the claimed qualifying diagnosis of dementia.

Black man, who was 57 at the time of his death, had his scores normed to reflect his race, age, education, and other factors in accordance with the protocols. Hoffman stated that Hoffman’s claim would not be eligible for an award, even if the tests were rescored using the new race-blind formula.

Black players make up 70% of the active players and 60% of living retired players. The NFL is likely to make significant changes that could prove costly.

After months of negotiations closed to the public, their lawyers met with the NFL, class counsel for almost 20,000 former players and lawyers for the NFL to reach an agreement to end racism.

Ken Jenkins and Amy Lewis, his wife, fought for the changes. They pressed the Civil Rights Division of the Justice Department, to investigate the alleged discrimination.

Neurologists developed the binary scoring system for dementia testing in the 1990s to help factor in socioeconomic factors. One for Black people and one for everyone else. Experts claim it was not intended to be used in court settlements to determine the payouts.

Both sides accepted it in the 2015 settlement, which resolved lawsuits alleging that the NFL had concealed information about repeated concussions.

Ex-players who have Alzheimer’s, Parkinson’s and Amyotrophic Lateral Sclerosis will also receive financial compensation. The settlement does not include CTE, which some consider the signature disease in football. It only covers men who were diagnosed with it after April 2015, which was a deadline established to prevent suicides.