Judge Anita Brody of the U.S. District Court for the Eastern District of Pennsylvania, who oversees the NFL’s settlement with thousands of former NFL players regarding the league’s cavalier handling of head trauma issues for decades, has ordered the league and class counsel representing those former players to the negotiating table to address the race-norming issue, which former players say weighs settlement awards against former Black players.
On Monday, Judge Brody issued a pair of orders — one dismissing the lawsuits brought against the league by former players Kevin Henry and Najeh Davenport as “an improper attack on the Settlement Agreement.” But Judge Brody also issued an order expressing concern about the practice of race-norming, which sets a lower cognitive bar for Black players, thus preventing them from gaining equal consideration when cognitive impairment due to head trauma is determined.
“We are glad that the Court has expressed concern about the NFL Concussion Settlement program’s ‘race-norming,’ since for the last four years it has been used to discriminate against Black former players and must be changed immediately,” said Cy Smith, an attorney at Zuckerman Spaeder, who represents Henry and Davenport. “However, 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. The class of Black former players whom we represent must have a seat at the table and a transparent process, so that we are not back in the same place four years from now dealing with another fatally flawed settlement.”
How the NFL is stacking the deck against Black ex-players in its concussion settlement
“We are pleased with the Court’s decision,” an NFL spokesperson said in a statement, “and look forward to working with Class Counsel and Magistrate Judge Strawbridge to address the Court’s concerns.”
Christopher Seeger, an attorney representing former players in the settlement, told ABC News recently that he did not properly acknowledge the concerns of his clients.
“I was wrong. I didn’t have a full appreciation of the scope of the problem,” Seeger said. “You think you know everything. Sometimes you don’t. But the closer I looked, the more I realized that this had to go.”
“I’m really sorry that anybody, any client of mine in this program has been made to feel that way. That is a big mistake. It was a failure of the system. I’m a part of that. But I’m also a part of getting it fixed.”
Per ABC News, the data shows that there could be a significant impact because of race-norming.
At the request of an attorney who represents several former NFL players, a neuropsychologist who has evaluated former NFL players under the concussion settlement program recently re-scored the results of cognitive tests from a group of 94 Black former players.
Nine tests were deemed “incomplete” because of “missing raw scores,” leaving a sample of 85 scores recorded by approximately 40 different clinicians between 2016 and 2020.
When the clinician interpreted the test scores as if those former players had been white, 34 of them met the criteria to receive payouts through the program. When the clinician applied the recommended demographic correction to those same scores, however, only 10 of those same players qualified.
“For me, the only two outcomes here, without a massive war, is elimination of race norms and the ability to go back and look at every claim, every single claim, to determine where it’s been applied,” Seeger concluded. “And if it has to be rescored and then compensated, so be it.”
The NFL has said that while race-norming isn’t the ideal answer, there isn’t an alternative… which seems a shoddy argument at best.
“Everyone agrees race-based norms should be replaced, but no off-the-shelf alternative exists, and that’s why these experts are working to solve this decades-old issue,” the league said in a statement. “The replacement norms will be applied prospectively and retrospectively for those players who otherwise would have qualified for an award but for the application of race-based norms.”
