In a proposal filed in federal court, the NFL and lawyers for thousands of retired players have reached an agreement to end race-based adjustments in dementia testing in the $1 billion settlement of concussion claims.
The revised testing plan follows public outrage over the use of 'race-norming,' a practice that came to light only after two former NFL players filed a civil rights lawsuit over it last year. The adjustments, critics say, may have prevented hundreds of black players suffering from dementia to win awards that average $500,000 or more.
Race norming assumes black players start with lower cognitive function, which makes it harder for them to show they suffer from a mental deficit linked to their playing days.
In this December 12, 2018, file photo, NFL commissioner Roger Goodell speaks during a news conference in Irving, Texas. This week, Goodell's office and lawyers for thousands of retired players have reached an agreement to end race-based adjustments in dementia testing in the $1 billion settlement of concussion claims
The proposal, which must still be approved by a judge, follows months of closed-door negotiations between the NFL, class counsel for the retired players, and lawyers for the players who filed suit, Najeh Davenport (right) and Kevin Henry (left)
The black retirees will now have the chance to have their tests rescored or, in some cases, seek a new round of cognitive testing, according to the settlement, details of which were first reported in The New York Times on Wednesday.
'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,' NFL lawyer Brad Karp said in a statement.
The proposal, which must still be approved by a judge, follows months of closed-door negotiations between the NFL, class counsel for the retired players, and lawyers for the players who filed suit, Najeh Davenport and Kevin Henry.
The vast majority of the league's players - 70 percent of active players and more than 60 percent of living retirees - are black. So the changes are expected to be significant, and potentially costly for the NFL.
'No race norms or race demographic estimates - whether black or white - shall be used in the settlement program going forward,' the proposal said.
In this May 14, 2021, file photo, former NFL players Ken Jenkins, right, and Clarence Vaughn III, center right, along with their wives, Amy Lewis, center, and Brooke Vaughn, left, carry petitions demanding equal treatment for everyone involved in the settlement of concussion claims against the NFL, to the federal courthouse in Philadelphia
To date, the concussion fund has paid out $821 million for five types of brain injuries, including early and advanced dementia, Parkinson's disease and Lou Gehrig's disease, also known as ALS.
Lawyers for the black players suspect that white men were qualifying for awards at two or three times the rate of blacks since the payouts began in 2017. It's unclear whether a racial breakdown of payouts will ever be done or made public.
Black NFL retiree Ken Jenkins and others have asked the Civil Rights Division of the Justice Department to investigate.
Former Redskins star Charles Mann suspects he may have been among the former players who were denied claims due to race norming
The binary scoring system used in dementia testing - one for black people, one for everyone else - was developed by neurologists in the 1990s as a crude way to factor in a patient's socioeconomic background. Experts say it was never meant to be used to determine payouts in a court settlement.
However, it was adopted by both sides in the court-approved, $765 million settlement in 2013 that resolved lawsuits accusing the NFL of hiding what it knew about the risk of repeated concussions. The fund was later uncapped amid concerns the money would run out.
This year, amid the national reckoning on race in America, both sides agreed to work to halt the use of race-norming.
The NFL would admit no wrongdoing under terms of the agreement. The league said it hoped the new testing formula, developed with input from a panel of experts, would be widely adopted in medicine.
Despite the NFL's reversal, the impact of race-norming in concussion settlement is not fully understood, and players are accusing the league of using the practice as a strategy to limit payouts.
'The owners obviously did this to save money,' Charles Mann, a 60-year-old former 49ers and Redskins defensive end, told The Washington Post in August while petitioning the Justice Department. 'We need fresh blood, new people to come in here and take a look at this.'
In August, the Post found that the law firm hired by the NFL and Seeger to oversee payouts had repeatedly issued rulings that stressed the use of race-norming. In seven rejected claims reviewed by the Post, that firm, BrownGreer, specifically cited the failure to use race-based norms as the reason for the denial.
Mann told the Post he feels find cognitively, but recently had a baseline test to see if there was any reason for concern.
'Now I'm just left wondering,' Mann said, 'did they race-norm me?'
NFL lawyer Brad Karp said in a statement that the NFL looks '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'
To date, about 2,000 men have applied for dementia awards, but only 30 percent have been approved. In some cases, the NFL appealed payouts awarded to black men if doctors did not apply the racial adjustment. The new plan would forbid any challenges based on race.
The awards average $715,000 for those with advanced dementia and $523,000 for those with early dementia. The settlement is intended to run for 65 years, to cover anyone retired at the time it was first approved.
'The NFL should be really enraged about the race norming. .... That should be unacceptable to them and all of their sponsors,' Roxanne 'Roxy' Gordon of San Diego, the wife of an impaired former player, said earlier this week.
Senior US District Judge Anita B. Brody, who has overseen the settlement for a decade, dismissed the suit filed by Davenport and Henry this year on procedural grounds. But she later ordered the lawyers who negotiated the 2013 settlement - New York plaintiffs lawyer Christopher Seeger for the players and Karp for the NFL - to work with a mediator to address it
Amon Gordon, a Stanford University graduate, finds himself at 40 unable to work. He has twice qualified for an advanced dementia award only to have the decision overturned for reasons that aren't yet clear to them. His case remains on review before the federal appeals court in Philadelphia.
Nearly 20,000 NFL retirees have registered for the settlement program, which offers monitoring, testing and, for some, compensation.
'If the new process eliminates race-norming and more people qualify, that's great,' said Jenkins, who does not have an impairment but advocates for those who do.
'(But) we're not going to get everything we wanted,' Jenkins, an insurance executive, said Tuesday. 'We want full transparency of all the demographic information from the NFL - who's applied, who's been paid.'
Senior US District Judge Anita B. Brody, who has overseen the settlement for a decade, dismissed the suit filed by Davenport and Henry this year on procedural grounds.
But she later ordered the lawyers who negotiated the 2013 settlement - New York plaintiffs lawyer Christopher Seeger for the players and Karp for the NFL - to work with a mediator to address it.
In an August statement to the Post, Karp called Mann's petition 'the latest in a series of unfounded attacks on the Settlement.'
'As with prior ''discrimination'' challenges, all of which have been dismissed, this attack is baseless,' Karp said. 'Race norming is a widely used and longstanding practice in the neuropsychological community designed to correct biases in cognitive testing.'
Former Kansas Chiefs defensive lineman Amon Gordon finds himself at 40 unable to work. He has twice qualified for an advanced dementia award only to have the decision overturned for reasons that aren't yet clear to them. His case remains on review before the federal appeals court in Philadelphia
Seeger defended his efforts in the settlement to the Post in August after previously apologizing to his clients back in June for failing to appreciate 'the scope of the problem.'
'We have been engaged in a multiyear slugfest with the NFL that has thus far resulted in nearly one billion dollars in benefits to former players. In addition to eliminating 'race norms.', our hope is that the NFL concussion settlement will effectuate broad and permanent change in not only neuropsychology but in making the first step in eliminating race norming — an unfortunate but common practice — in all of medicine and health evaluations,' Seeger told the Post.
Meanwhile, while the details continued to be finalized, the Gordons and other NFL families wait.
'His life is ruined,' Roxy Gordon said of her husband, who spent nearly a decade in the league as a defensive tackle or defensive end. 'He's a 40-year-old educated male who can't even use his skills. It's been horrible.'
New York plaintiffs lawyer Christopher Seeger defended his efforts in the settlement to the Post in August after previously apologizing to his clients back in June for failing to appreciate 'the scope of the problem'
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