Retired Black Players Say NFL Brain-Injury Payouts Show Bias

Thousands of retired Black professional football players, their families and supporters are demanding an end to the controversial use of “race-norming” to determine which players are eligible for payouts which a system experts say is discriminatory.

Former Washington running back Ken Jenkins, 60, and his wife Amy Lewis on Friday delivered 50,000 petitions demanding equal treatment for Black players to Senior U.S. District Judge Anita B. Brody in Philadelphia, who is overseeing the massive settlement. Former players who suffer dementia or other diagnoses can be eligible for a payout.

Under the settlement, however, the NFL has insisted on using a scoring algorithm on the dementia testing that assumes Black men start with lower cognitive skills. They must therefore score much lower than whites to show enough mental decline to win an award. The practice, which went unnoticed until 2018, has made it harder for Black former players to get awards.

“My reaction was, ‘Well, here we go again,’” said Jenkins, a former running back. “It’s the same old nonsense for Black folks, to have to deal with some insidious, convoluted deals that are being made.” {snip}

In March, Brody threw out a civil rights lawsuit that claimed the practice is discriminatory. But she later said in a filing that the practice raised “a very important issue” and asked a magistrate judge to compile a report on the problem. {snip}

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The majority of the league’s 20,000 retirees are Black. And only a quarter of the more than 2,000 men who sought awards for early to moderate dementia have qualified under the testing program. Lawyers for Black players have asked for details on how the $800 million in settlement payouts so far have broken along racial lines, but have yet to receive them.

Race norming is sometimes used in medicine as a rough proxy for socioeconomic factors that can affect someone’s health. Experts in neurology said the way it’s used in the NFL settlement is too simplistic and restrictive, and has the effect of systematically discriminating against Black players.

“Because every Black retired NFL player has to perform lower on the test to qualify for an award than every white player. And that’s essentially systematic racism in determining these payouts,” said Katherine Possin, a neurology professor at the UCSF Memory and Aging Center.

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The first lawsuits accusing the NFL of hiding what it knew about the link between concussions and brain damage were filed in 2011. A trickle soon became a deluge, and the NFL, rather than risk a trial, agreed in 2013 to pay $765 million over 65 years for certain diagnoses, including Alzheimer’s disease and dementia. But as the claims poured in, Brody feared the fund would run out early and ordered the cap removed.

The NFL, which foots the bill, began challenging claims by the hundreds, according to the claims website.

In appealing one filed by Najeh Davenport, the NFL complained that his doctor had not used “full demographic norms” in the cognitive scoring. That meant factoring in age, education, gender — and race.

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Ultimately, the appeal was reviewed by a pair of University of Pennsylvania legal scholars serving as special masters for Brody. They rejected the original reviewer’s finding that race norms were mandatory under the settlement. Still, they concluded that Davenport’s doctor had to explain whether he typically uses them or only waived them so Davenport would get an award.

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Days later, Davenport and another former Pittsburgh Steeler, Kevin Henry, filed the civil rights lawsuit, calling public attention to the issue for the first time. Their lawyers hoped to learn through the litigation how often Black players are denied payouts.

Instead, Brody dismissed the suit, saying they were bound by the settlement because they had not opted out years ago. But as concerns about race-norming grew — and with the racial unrest of 2020 still simmering — Brody in April opened the door to changing the practice when she ordered lawyers for the league and the players back to the table to work out an agreement.

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Race-based adjustments for neurology — known as “Heaton norms” — were designed in the early 1990s by Dr. Robert Heaton to estimate how socioeconomic factors affect someone’s health. They are widely used, but in recent years, scientists in the field have begun to recognize the limitations of the normative comparison groups they have used for years.

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The NFL’s dementia testing evaluates a person’s function in two dozen skills that fall under five sections: complex attention/processing speed; executive functioning; language; learning and memory; and visual perception. A player must show a marked decline in at least two of them to get an award.

In an example shared with The Associated Press, one player’s raw score of 19 for “letter-number sequencing” in the processing section was adjusted using “race-norming” and became 42 for whites and 46 for Blacks.

The raw score of 15 for naming animals in the language section became a 35 for whites and 41 for Blacks. And the raw score of 51 for “block design” in the visual perception section became a 53 for whites but 60 for Blacks.

Taking the 24 scores together, either a white or Black player would have scored low enough to reach the settlement’s 1.5-level of early dementia in “processing speed.” However, in the language section, the scores would have qualified a white man for a 2.0-level, or moderate, dementia finding — but shown no impairment for Blacks.

Overall, the scores would result in a 1.5-level dementia award for whites — but nothing for Blacks. Those awards average more than $400,000 but can reach $1.5 million for men under 45, while 2.0-level dementia yields an average payout of more than $600,000 but can reach $3 million.

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“Norming by race is not the stance that the NFL ought to take,” said Dr. Art Caplan, a New York University medical ethicist. {snip}

“There’s always been this race-norming in medicine,” he said, “that has been problematic because it’s tied in too closely to racism.”

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