Officials with the National Football League have agreed to end the use of “race-norming” when conducting testing for dementia after critics complained the practice makes it more difficult for players to be compensated for concussion injury claims.
First used during the 1990s, the binary testing scheme makes the assumption that black players do not start out with the same level of cognitive functioning as players of other races, according to reports.
But critics of race-norming allege that such testing simply makes it a lot harder for black players to be compensated fairly for concussions received during their NFL careers under the settlement provisions of a class-action lawsuit in 2015 which has already led to payouts of around $800 million.
The league agreed to end the practice in a tentative agreement that was filed on Wednesday, according to The New York Times, which first reported the development. The agreement must still be approved by a judge.
“No Race Norms or Race Demographic Estimates — whether Black or White — shall be used in the Settlement Program going forward,” the proposed deal says, adding that no party can appeal their cases on the basis of race.
“We look forward to the Court’s prompt approval of the agreement, which provides for a race-neutral evaluation process that will ensure diagnostic accuracy and fairness in the Concussion Settlement,” Brad Karp, a lawyer for the league, said in a statement to the Times.
As part of the deal, the paper noted further, an expert panel will now come up with new norms applying to all neuropsychological testing in the future under the program, including all claims that have yet to be ruled on and claims that are now on appeal which utilized the old race-norming standard or where “race demographic estimates may be an issue,” the Times said.
Under the new agreement, if it is approved, hundreds of former NFL players will be able to have their concussion claims reexamined. Thus far, fewer than 700 of more than 2,000 dementia-related claims have been settled, the Times noted.
“We believe that this is a huge win for black retired players and look forward to discussing it more fully once permitted,” said Cyril Smith, the lawyer representing two black former NFL players who initially sued the league.
Attorneys representing black players have argued that white players appeared to qualify for concussion awards at two to three times the rate of black players since payouts began after the $1 billion 2015 settlement. The Associated Press reported that it is not clear if payout breakdowns by race are going to be made public or if the comparisons were ever done.
One black NFL retiree, Ken Jenkins, has requested that the Justice Department’s Civil Rights Division investigate the situation.
“The NFL should be really enraged about the race norming. …. That should be unacceptable to them and all of their sponsors,” Roxanne “Roxy” Gordon, who is married to an impaired former player, noted earlier this week.
The average payout from the settlement has been around $715,000 for ex-players in advanced stages of dementia, and $523,000 for those with early signs of the condition. The settlement aims to run for 65 years in order to cover retirees at the time the deal was first approved.
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