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NFL reaches agreement to end 'race norming' in $1B concussion settlement

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Months after vowing to end the practice of "race norming" in the league's $1 billion concussion settlement, the NFL reached a legal agreement Wednesday to do so.

A 46-page agreement between the NFL and retired NFL players was posted on a U.S. District Court online docket in Philadelphia — apparently mistakenly — detailing the deal. The Washington Post reports that the document was later removed as it still needs to undergo review by a judge.

An attorney for ex-players Kevin Henry and Najeh Davenport confirmed that the plaintiffs agreed to the deal in a statement provided to the Post.

“We believe that this is a huge win for Black retired players and look forward to discussing it more fully once permitted,” attorney Cy Smith said in a statement.

NFL attorney Brad Karp also released a statement confirming the agreement. 

“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," the statement reads. 

GREEN BAY, WI - OCTOBER 9:  Running back Najeh Davenport #44 of the Green Bay Packers looks on after being injured against the New Orleans Saints at Lambeau Field on October 9, 2005 in Green Bay, Wisconsin.  The Packers defeated the Saints 52-3.   (Photo by Harry How/Getty Images)
Najeh Davenport joined Kevin Henry in a lawsuit that led to Wednesday settlement. (Harry How/Getty Images)

What is 'race norming?'

The issue at stake was the NFL's practice of using different cognitive baselines for Black and non-Black players when evaluating brain injury claims in the concussion settlement. The practice referred to as "race norming" assumes a lower cognitive baseline for Black players and was applied as the league considered claims in the $1 billion settlement. 

In short, the practice made it harder for Black players to prove a cognitive deficit associated with football-related brain injuries because it assumed Black players had a lower baseline to begin with. The Associated Press previously reported that the practice was based on criticized medical standards developed in the 1990s.

Lawsuit led to Wednesday's agreement

Davenport and Henry filed a lawsuit in August 2020 of behalf of Black players alleging that the lower baselines led to their claims being denied. The suit alleged that the NFL “explicitly and deliberately” discriminated against Black players who filed dementia-related claims in the settlement. Wednesday's agreement is a product of that lawsuit. 

Per the Post, the agreement was reached via months-long negotiations that involved consultation with neuropsychology experts. Moving forward, players will be evaluated on a new scale implemented with short-term changes intended to make the process race-neutral. Players who have already gone through the process will be re-evaluated based on the new standards.

In the meantime, experts agreed upon by both the NFL and the players' lawyers will work on a long-term replacement over the next year that's based on studying cognitive tests of thousands of former NFL players and removes the concept of race norming. 

“No Race Norms or Race Demographic Estimates — whether Black or White — shall be used in the Settlement Program going forward,” the agreement reads, per The New York Times.

The Post reports that the agreement protects the NFL from further legal action regarding race norming in the concussion settlement.

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