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PHILADELPHIA – Black retired football players who were denied payment for dementia in the NFL’s $ 1 billion concussion settlement may seek to be retested or have their claims reinstated to eliminate racial bias in the test and payout formula under a revised plan that was completed Friday.
Outrage over the use of “race norms” in dementia testing – which assumed black people have a lower cognitive baseline score, making it harder for them to show mental decline in football – forced the NFL and players’ lawyers back to negotiating table last year.
The revisions could allow many retired players to resubmit their claims and could add $ 100 million or more to the NFL’s legal tab. The NFL has through the fund paid out more than $ 800 million to date, nearly half for dementia claims. Dementia rates average around $ 600,000.
“Thousands of black players can benefit from these changes to the settlement,” said attorney Cyril V. Smith, representing former players Najeh Davenport and Kevin Henry, whose 2020 racial discrimination case brought the issue to light.
Senior U.S. District Judge Anita B. Brody of Philadelphia, who has been overseeing the NFL concussion case for a decade, dismissed their lawsuit but ordered the parties to address the issue. She approved the negotiated changes in an order filed Friday.
More than 3,300 former players or their families have sought awards for brain damage in connection with their playing days, with more than 2,000 of them for moderate to advanced dementia.
The dementia cases have proven to be the most controversial, and only 3 out of 10 injuries have been paid so far. Another third have been rejected and the rest remain in limbo, often as the claim goes through multiple layers with review by the claims administrator, medical and legal consultants, audit investigators and judges.
In a recent ruling showing the difficulties families have had in navigating the claims process, the reviewer lamented the long delays the widow of a former player had experienced after his death in 2019, which was found to have advanced CTE or chronic traumatic encephalopathy.
His medical records show “progressive cognitive decline and unconfirmed evidence that he suffered from CTE at the time of his death,” wrote reviewer David Hoffman.
“However, these diagnoses and the supporting medical records do not fit into the settlement’s prescribed boxes for the alleged qualifying diagnosis. [of dementia]”said Hoffman, an expert in contract law at the University of Pennsylvania Law School.
The player, a black man who was 57 when he died, also had his scores standardized to take into account his race, age, education and other factors, in accordance with the protocols used at the time. According to Hoffman, this player’s claim would not qualify for a prize even if his tests were taken again under the new race-blind formula.
The vast majority of the league’s players – 70% of active players and more than 60% of current retirees – are black. So the changes are expected to be significant and potentially costly for the NFL.
The agreement to halt race standards follows months of closed-door negotiations between players’ attorneys, the NFL, class attorneys for nearly 20,000 retired players and NFL attorneys.
Ken Jenkins and his wife, Amy Lewis, have been fighting for the changes and have been pressuring the Justice Department in the Department of Justice to investigate the alleged discrimination.
The binary scoring system used in dementia testing – one for blacks, one for everyone else – was developed by neurologists in the 1990s as a raw way to take into account a patient’s socioeconomic background. Experts say it was never intended to be used to determine payouts in a court settlement.
However, it was passed by both sides in the 2015 settlement, which resolved lawsuits accusing the NFL of hiding what it knew about the risk of recurrent concussions.
The settlement also includes financial awards to former players with Alzheimer’s disease, Parkinson’s disease and amyotrophic lateral sclerosis (Lou Gehrig’s disease). It does not cover CTE – as some call football’s signature disease – except for men diagnosed with it posthumously before April 2015, a deadline set to avoid encouraging suicide.