Judge tosses suit over ‘race-norming’ in NFL dementia tests

"The class of Black former players whom we represent must have a seat at the table and a transparent process.”

• Maryclaire Dale/The Associated Press
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(Philadelphia) — A federal judge on Monday dismissed a lawsuit that challenged “race-norming” in dementia tests for retired NFL players, a practice that some say makes it harder for Black athletes to show injury and qualify for awards.

A hearing had been set for Thursday. The judge instead ordered the NFL and the lead lawyer in the overall $1 billion settlement to resolve the issue through mediation. That process would appear to exclude the Black players who sued.

“We are deeply concerned that the Court’s proposed solution is to order the very parties who created this discriminatory system to negotiate a fix,” said lawyer Cyril V. Smith, who represents ex-players Kevin Henry and Najeh Davenport. “The class of Black former players whom we represent must have a seat at the table and a transparent process.”

The demographic factors that doctors consider during testing for dementia often include race. If so, lawyers say, the testing assumes that Black athletes start with worse cognitive functioning than white people — which means it’s harder for them to show a deficit and qualify for awards. Both Henry and Davenport were denied awards but would have qualified had they been white, according to their lawsuit.

Smith hoped to learn the scope of the problem through discovery as the lawsuit progressed, but the dismissal by Senior U.S. District Judge Anita B. Brody in Pennsylvania means he may never know how many Black players lost out on payments because of the practice.

Brody has steered the litigation since the first suits were filed in 2011, alleging that the NFL had long hidden what it knew about the link between concussions and brain injuries. The judge also ordered secret negotiations then that led to the surprise settlement of the case — long before discovery or trial — in 2013.

The settlement fund has so far paid more than $765 million to retired players for neurocognitive problems linked to NFL concussions, including about $335 million for dementia. Payments are expected to top $1 billion long before the 65-year settlement plan ends.

The dementia claims have proven especially contentious. Many of them have been denied, often after challenges from the NFL.

Smith believes the “race-norming” practice violates federal law and wants to see doctors banned from using it. He also wants to ensure that Black players denied awards for dementia get a chance to be reexamined.

Spokespeople for both the NFL and lead class counsel Christopher Seeger did not immediately return calls seeking comment Monday. League spokesman Brian McCarthy called the lawsuit “entirely misguided” when it was filed last year.

“The settlement program … was the result of arm’s-length, comprehensive negotiations between the NFL and Class Counsel, was approved by the federal courts after a searching review of its fairness, and always contemplated the use of recognized statistical techniques to account for demographic differences such as age, education and race,” he said at the time in a statement.

Seeger, at the time, said he had seen no evidence of racial bias in the settlement program. He said that the testing was designed by leading experts and approved by Brody and that it was up to the evaluating physician to decide whether to include race as a factor.

Henry, who played for the Pittsburgh Steelers from 1993-2000, said his claim was denied although he suffers from headaches, depression and memory loss that leave him unable to hold a job.

Davenport, who played for the Steelers, Green Bay Packers and Indianapolis Colts from 2002-2008, said he suffered more than 10 concussions, including one that broke his eye socket and left him unconscious. He was approved for an award until the NFL appealed, asking that his test results be recalculated using racial norms, Smith said. By that measurement, his claim would fail.