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The National Football League has announced an end to its “race-norming” policy – which assumed Black players had a lower cognitive function compared to non-Black players – amid allegations of racial bias in a compensation program within the organisation.
Scrutiny for the practice came after former NFL players Najeh Davenport and Kevin Henry filed a lawsuit against the league in 2020 that “race norming” was used to determine if a player should receive compensation for showing a cognitive deficit following their athletic career.
When using “race-norming” in testing, it assumed that Black patients started at a lower cognitive function compared to non-Black patients, which made it harder for them to show a deficit and qualify for compensation.
Mr Henry and Mr Davenport were both denied awards from the league but claim they would’ve qualified if they were white, according to the lawsuit.
The NFL announced on Wednesday that the league was committed to ending race-norming when determining concussion compensation, the Associated Press first reported.
“Everyone agrees race-based norms should be replaced, but no off-the-shelf alternative exists and that’s why these experts are working to solve this decades-old issue,” League spokesperson Brian McCarthy McCarthy said in a statement. “The replacement norms will be applied prospectively and retrospectively for those players who otherwise would have qualified for an award but for the application of race-based norms.”
A new testing regime would be applied to determine compensation, the league announced, and the panel included two females and three Black doctors.
What is race-norming?
“Race-norming” is used when testing to determine if someone has cognitive impairment or other neurological issues, with race being a factor that could impact the results of the test. Other factors considered by doctors include socioeconomic background and education.
This practice has been used in several different medical fields as a way to supposedly safeguard against misdiagnosis from physicians. But it has become increasingly disputed within neuropsychology for the potential racist factors that impact the test results.
When used by the NFL to determine concussion compensation, “race-norming” assumed that the average Black player started at a lower level of cognitive functioning compared to the average white player, former players claim.
“What the NFL is doing to us right now … when they use a different scale for African-Americans versus any other race?” Mr Davenport previously said. “That’s literally the definition of systematic racism.”
More than 2,000 NFL retirees have filed claims of decline in cognitive functioning, but less than 600 players have received awards from the NFL, according to a recent report.
The awards have averaged $516,000 for 379 players who had early-stage dementia and $715,000 for 207 players who had moderate dementia. Players could also receive awards for other cognitive declines or brain diseases.
The report did not differentiate who received an award based on race, but about 70 per cent of the NFL was made up of Black players.
Although the NFL has since reversed the practice, it still maintains that the testing strategy was developed in medicine to “to stop bias in testing, not perpetrate it.”
The league also claimed that the use of race was never mandatory for doctors when evaluating former players, but the NFL did appeal several claims filed by Black players after their scores weren’t adjusted for race.
What does this mean for the lawsuit?
Mr Henry and Mr Davenport filed a lawsuit against the league in 2020, helping to bring to light the potential use of “race-norming” to determine compensation.
In March, a federal judge dismissed the “race-norming” lawsuit that challenged the cognitive tests and how a player’s compensation was determined, calling it a “collateral attack” on the settlement.
Instead, the judge ordered the NFL and lead attorney Christopher Seeger, who represents former NFL players and negotiated the initial landmark concussion settlement, to resolve the $1bn settlement through mediation.
Mr Henry and Mr Davenport have since appealed the ruling.
Then US District Judge Anita Brody took an unusual step to request a report on the issue, giving hope to Black athletes that the NFL might have to provide a breakdown in race of who has received compensation under the program.
That information has yet to be revealed.
Mr Seeger initially denied that racial bias was used in the compensation program earlier this year. But on Wednesday, the lawyer apologised for his suggestion that there was no racial bias amid backlash.
“I am sorry for the pain this episode has caused Black former players and their families. Ultimately, this settlement only works if former players believe in it, and my goal is to regain their trust and ensure the NFL is fully held to account,” Mr Seeger said in a statement.
The lawyer was now locked into confidential discussion with the NFL after the federal judge ordered for the two sides to mediate and determine if racial bias was used in awarding compensation for former players.
“Today our focus is on eliminating the use of ‘race norms’ in the claims process and rescoring claims where they were applied. This process is being overseen by the court, and the results of our investigation will be released publicly once completed,” Mr Seeger said.
The Wednesday news has come with some backlash from former players who are unsatisfied with both the league and Mr Seeger, who was assigned to represent them in receiving compensation.
“I’ll believe it when I see it,” said Ken Jenkins, a former Washington running back who helped deliver tens of thousands of petitions to the federal courthouse in Philadelphia where Judge Brody works. The petitions demanded equal treatment for former Black players in determining if they received compensation.
To date under the settlement, which was finalised in 2017 after first being introduced in 2011, the NFL has awarded former players nearly $800m in compensation for displaying symptoms of cognitive decline and brain diseases like dementia.