NFL, players agree to end ‘race-norming’ in $1B settlement

Oct 19, 2021, 10:05 PM | Updated: Oct 21, 2021, 3:05 pm
FILE - In this May 14, 2021, file photo, former NFL players Ken Jenkins, right, and Clarence Vaughn...

FILE - 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, in this Friday, May 14, 2021, file photo. Lawyers for the NFL and retired players filed proposed changes to the $1 billion concussion settlement on Wednesday, Oct. 20, 2021, to remove race-norming in dementia testing, which made it more difficult for Black players to qualify for payments. (AP Photo/Matt Rourke, File)

(AP Photo/Matt Rourke, File)

PHILADELPHIA (AP) — The NFL and lawyers for thousands of retired NFL players have reached an agreement to end race-based adjustments in dementia testing in the $1 billion settlement of concussion claims, according to a proposed deal filed Wednesday in federal court.

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.

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 Black players who filed suit, Najeh Davenport and Kevin Henry.

The vast majority of the league’s players — 70% of active players and more than 60% 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.

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.

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, which assumes Black players start with lower cognitive function. That makes it harder to show they suffer from a mental deficit linked to their playing days.

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.

To date, about 2,000 men have applied for dementia awards, but only 30% 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.

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 U.S. 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 the meantime, 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.”

___

Follow Maryclaire Dale on Twitter at https://twitter.com/Maryclairedale.

___ This story has been corrected to say Najeh Davenport and Kevin Henry filed their civil rights complaint last year, not in 2019.

Copyright © The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

AP

Afghan girls listen their teacher at Tajrobawai Girls High School, in Herat, Afghanistan, Thursday,...
Associated Press

Unique effort reopens girls’ schools in an Afghan province

HERAT, Afghanistan (AP) — High school girls are sitting at home almost everywhere in Afghanistan, forbidden to attend class by the Taliban rulers. But there’s one major exception. For weeks, girls in the western province of Herat have been back in high school classrooms — the fruit of a unique, concerted effort by teachers and […]
1 day ago
Long-time Mississippi anti-abortion activist Tanya Britton pulls down some of the protective drapin...
Associated Press

Abortion debate epicenter: Mississippi clinic stays open

JACKSON, Miss. (AP) — As the U.S. Supreme Court hears a Mississippi case that could topple abortion rights nationwide, the state’s only abortion clinic is busier than ever: Volunteers continue to escort patients into the bright pink building while protesters outside beseech women not to end their pregnancies. In recent years, Jackson Women’s Health Organization […]
1 day ago
In this photo released by Tourism Fiji, guests receive a traditional Fijian welcome as they arrive ...
Associated Press

Fiji welcomes back tourists despite omicron threat

WELLINGTON, New Zealand (AP) — Fiji welcomed back its first tourists in more than 600 days on Wednesday after pushing ahead with reopening plans despite the threat posed by the newly detected omicron variant of the coronavirus. The Pacific nation is famed for its idyllic white-sand beaches and relaxed, welcoming attitude. And it depends on […]
1 day ago
People attending a vigil embrace at LakePoint Community Church in Oxford, Mich., Tuesday, Nov. 30, ...
Associated Press

Student kills 3, wounds 8 at Oxford High School in Michigan

OXFORD TOWNSHIP, Mich. (AP) — A 15-year-old sophomore opened fire at his Michigan high school, killing three students, including a 16-year-old boy who died in a deputy’s patrol car on the way to a hospital, authorities said. Eight other people were wounded, some critically. Oakland County Sheriff Michael Bouchard said investigators were still trying to […]
1 day ago
A medical worker of Tokyo Medical Center receives a booster shot of the Pfizer COVID-19 vaccine Wed...
Associated Press

Japan starts booster COVID vaccinations amid omicron scare

TOKYO (AP) — Japan on Wednesday started offering coronavirus vaccine booster shots to health care workers amid growing concerns over a new variant of the virus that has already been detected in the country. Japan’s initial vaccination drive kicked off in mid-February and some medical workers who received jabs more than nine months ago are […]
1 day ago
FILE - Then-California Gov. Jerry Brown talks during an interview in Sacramento, Calif., on Dec. 18...
Associated Press

Trial to determine if requiring women board members is legal

LOS ANGELES (AP) — When then-California Gov. Jerry Brown signed the nation’s first law requiring women on boards of publicly traded companies, he suggested it might not survive legal challenges. Three years later, a judge will begin hearing evidence Wednesday in Los Angeles Superior Court that could undo the law credited with giving more women […]
1 day ago

Sponsored Articles

(Facebook Photo/NHTSA)...
Sweet James

Upcoming holiday season is peak time for DUI arrests

The holiday season may be the most wonderful time of the year, but it’s also the most dangerous time of the year to be driving. That’s why it’s important to remember to call Sweet James Accident Attorneys if you’re injured or arrested because of a DUI accident.
...
PNC BANK

How your family can explore the Musical Instrument Museum

Whether you want to spend a day with family, do crafts with kids at home, or have an adult night out, the Musical Instrument Museum in Phoenix has options. As the world’s only global musical instrument museum, MIM offers interactive and immersive exhibits to foster an appreciation of different cultures and their instruments. “A visit […]
...
PNC Bank

How one organization supports early childhood literacy for the most vulnerable

Nearly two out of every three children in low-income communities don’t own a single children’s book, a fact that ultimately could have profound impacts even before entering kindergarten, according to Arizona nonprofit Southwest Human Development.
NFL, players agree to end ‘race-norming’ in $1B settlement