NFL agrees to end race-based adjustments in dementia testing used to evaluate concussion claims

PHILADELPHIA -- According to a proposal filed Wednesday in federal court, the NFL has agreed to end race-based modifications in dementia testing. This was criticized by critics who claimed it made it difficult for Black retirees for awards in the $1 Billion settlement of concussion claims.
After public outrage about "race-norming," a practice that was discovered only after two ex-NFL players filed a civil right lawsuit in 2019, the revised testing plan was made. Critics claim that the adjustments may have prevented hundreds more Black NFL players with dementia from winning awards worth an average of $500,000 or more.

According to the settlement, Black retirees now have the opportunity to have their cognitive tests rescored, or to seek a new round of testing.

The settlement stated that "No race norms nor race demographic estimates -- black or white -- shall ever be used in the settlement program going ahead."

After months of closed-door negotiations between Najeh Davenport, the NFL and class counsel for retired players and lawyers for Black players who brought suit, the proposal must be approved by a judge.

Black players make up 70% of active players and 60% of living retired players. The NFL is likely to make significant changes that could prove costly.

The fund has so far paid $821 million to five types of brain injury, including Parkinson's, Lou Gehrig's, and early and advanced dementia.

Lawyers representing Black players believe that white men were receiving awards at twice or three times the rate as Black men. It is not clear if a racial breakdown will be made or made public.

Ken Jenkins, a Black NFL retired player, and others asked the Civil Rights Division at the Justice Department for an investigation. In 2017, the first payouts were made. The first payouts were made in 2017.

About 2,000 men have submitted applications for dementia awards to date. However, only 30% of these have been granted. The NFL appealed some payouts to Black men when doctors didn't apply the racial adjustment. The new plan would prohibit any race-based challenges.

"The NFL should be outraged at the race norming. ... This should be unacceptable to them all,'' Roxanne Roxanne Gordon of San Diego, the wife and mother of an injured former player, stated earlier this week.

Amon Gordon, a Stanford University grad, is now 40 and unable to work. He was twice granted an advanced dementia award, but the decision was overturned because they aren't clear. The federal appeals court in Philadelphia is still reviewing his case.

Under the terms of the settlement, the NFL will not admit any wrongdoing.

Despite the controversy, the league agreed to stop race-norming. This assumes that Black players have lower cognitive functions. It is now harder to prove that they have a mental impairment related to playing.

Neurologists developed the binary scoring system for dementia testing in the 1990s to help factor in socioeconomic factors. One for Black people and one for everyone else. Experts disagree that it was intended to determine the payouts in court settlements.

Over 20,000 NFL retired players and their families have signed up for the settlement program. It offers testing, monitoring, and compensation. Average awards are $715,000 for advanced dementia patients and $523,000 to those with early dementia.

Jenkins said Jenkins does not have an impairment, but advocates for people who do.

Jenkins, an insurance executive, stated Tuesday that "[But] it's not going to be enough." We want complete transparency from the NFL regarding all demographic information, such as who applied and who was paid.

Anita B. Brody (Senior U.S. District Judge) dismissed the Henry and Davenport lawsuits this year for procedural reasons. She has been overseeing the settlement for over a decade. She later ordered that the attorneys who negotiated the 2013 settlement, New York plaintiffs' attorney Christopher Seeger for players and Brad Karp from the NFL, to meet with a mediator in order to resolve it. The Gordons and other NFL families waited.

Roxy Gordon spoke out about her husband Roxy Gordon, who was a defensive tackle and defensive end for several years. He's an educated 40-year-old male who cannot even use his skills. It has been terrible.

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