Accused of discrimination, NFL will revise concussion settlement standards
The NFL announced Wednesday that it will revise the medical formula it uses to determine whether retired players qualify for the settlement money available to those who sustained head injuries during their careers, which means that players who were rejected for compensation in the past could be reconsidered and approved.
The NFL’s formula was challenged by former Miami Hurricanes running back Najeh Davenport for allegedly discriminating against Black retirees.
Both Davenport and fellow NFL retiree Kevin Henry, who were denied the settlement, alleged in a lawsuit against the league that the formula was inherently flawed due to a process known as “race-norming.” According to the lawsuit, that means two players — one Black, one white — whose test results reveal the same degree of neurocognitive impairment are treated differently because the Black retiree is automatically assumed to have started with lower cognitive functioning than the white former player.
In the suit, Davenport also said that the NFL had claimed in the past that his score was not “race-normed,” or adjusted to take into account he is Black. Wednesday’s announcement, however, appears to at least confirm the practice.
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NFL spokesperson Brian McCarthy said a group of eight experts from the neuropsychological community was recently convened to find an alternative to race-norming.
“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,” he 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.”
Still, McCarthy said claims that the settlement program has discriminated on the basis of race have “no merit.” He would not name the members of the newly convened group but described it as “diverse” and including two women and three Black neuropsychologists.
Davenport and his lawyers declined to comment on Wednesday’s announcement.
Former Miami Dolphins wide receiver Duriel Harris, who is among the Black retirees denied a settlement, hadn’t heard of the race-norming in the medical formula until the Davenport and Henry lawsuit. “I was upset, shocked, pissed off about that because it was done in secret and no one informs you,” he said about race-norming. “You’re out there getting hit like everybody else but when it comes to your injury, you’re being judged differently and that just doesn’t seem fair.”
After a 1976 to 1985 NFL career, Harris said he has trouble remembering people and dates, falling asleep, concentrating and controlling his temper. And when he was denied the settlement he was told his test results under the formula were just shy of eligibility, he said.
”They were saying, well, maybe a few more years you can pay to get retested yourself or something, but that was like the end of the conversation,” Harris said
Though it’s unclear when an alternative to race-norming will be introduced, famed sports sociologist and professor emeritus at the University of California, Berkeley, Dr. Harry Edwards said he is glad to see the NFL take steps to address the issue. “I told the league early on that it would be a great mistake to let this issue of ‘race-norming’ access to benefits go ... unaddressed,” especially in a league that is predominantly Black.
This story was originally published June 2, 2021 at 8:57 PM.
