Investigations Surrounding Concussion Settlements Find Possible Racial Discrimination

For a long time now,  given the relevance of concussions and other serious injuries within the sport, player safety and long term health after football has always cast a dark cloud over the success of the NFL.

Most recently, clinicians tasked with evaluating the eligibility of former NFL players for compensation from a 2013 concussion settlement with the league worry that the testing process and  protocols discriminate against Black players. In August, two former Black NFL players – defensive end Kevin Henry, formerly of  the Pittsburgh Steelers, and running back Najeh Davenport, formerly of the Green Bay Packers, Pittsburgh Steelers, and Indianapolis Colts have filed a lawsuit against the NFL in which they accuse the league of “explicitly and deliberately” discriminating against black players filing dementia-related claims.

At issue here is a practice known as “race-norming”. “Race-norming” has been used by scientists for decades as a way to correct for the lower levels of education often found in minority communities. It was designed to prevent the over diagnosis of cognitive impairment in these communities. In their lawsuit, Henry and Davenport argue that this practice has in fact done the opposite regarding their settlement as it has made it harder for them to show and prove cognitive decline. In order to file a claim for compensation from the settlement,  the former players undergo a slew of  different tests to measure their cognitive functioning. Those scores are compared against a baseline score, or “norm,” meant to represent a normal level of cognitive functioning. If the scores fall far enough below that norm, the player is eligible for compensation. But the norm for Black players is lower than the one for white players which makes it harder for Black players to prove significant  cognitive decline and receive compensation from the settlement.

These findings have led to a standoff between the clinicians and the NFL in which the clinicians claim that the league’s protocols superseded their professional judgment, sometimes leading to a “drastically different outcome” for former players seeking help. In retort, the NFL claims that the concussion settlement was “agreed to by all parties, with the assistance of expert neuropsychological clinicians and approved by the courts more than five years ago” and “relied on widely accepted and long-established cognitive tests and scoring methodologies.”

Davenport, now 41 years old, said he started to notice he was forgetting things about seven years ago. He said that a payout for him from the NFL would help create a more solid future for his five children.




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