Judge tosses suit over ‘race-norming’ in NFL dementia tests
PHILADELPHIA — A federal judge on Monday dismissed a lawsuit that challenged “racenorming” in dementia tests for retired NFL players, a practice that some say makes it harder for Black athletes to qualify for awards that average more than $500,000.
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, and filed a notice to appeal the dismissal late Monday. “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. 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.
He wants race-norming banned in NFL testing going forward, and cases reviewed if it was used in the past. The awards so far average more than $700,000 for the 203 ex-players diagnosed with moderate dementia and more than $500,000 for the 365 diagnosed with earlier-stage dementia.
NFL spokesperson Brian McCartney said the league is
“pleased with the court’s decision” and expects the mediation to address the judge’s concerns about the issue.
Christopher Seeger, the lead lawyer for the more than 20,000 NFL retirees covered by the settlement, said the practice is not mandated under the deal but is left the discretion of the testing physicians.
“We have also opposed appeals filed by the NFL, supporting former players and physicians who found the application of such adjustments were inappropriate,” Seeger said in a statement.
Brody has managed the litigation since 2011, when the first players sued alleging the NFL had long hidden what it knew about the link between concussions and brain injuries. The judge also steered secret negotiations 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.
Seeger said he has seen no evidence of racial bias in the settlement program. Still, he said Monday, he is sorry it “opened a painful wound” for some.
Henry, who played for the Pittsburgh Steelers from 19932000, 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.
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While LeBron James was largely resting through the All-Star Game, the Brooklyn Nets were adding another piece for a run at his title.
With James still near the top of his game and the Nets on top of the league in scoring, it’s easy to envision a coastto-coast NBA Finals when a champion is crowned in July.
But, when most teams resume play Thursday — the same date last season was suspended — the leaders in the Eastern Conference might be doing so without their two best players.
As proven again when Philadelphia’s Joel Embiid and Ben Simmons had to sit out the All-Star Game, the coronavirus might still have a say on this season, making uncertainty a sizable obstacle in the title chase.
“You’re playing every other day. You don’t know when you’re going to have practice time. You don’t know as far as what the restrictions and with COVID and things of that nature if you’re going to have all your guys,” James said. “So it’s very challenging for all teams, not just us.”
The bigger problem for the Lakers has been the absence of All-Star Anthony Davis because of a right calf injury. The defending champions have struggled without him, dropping six of eight to end the first half and falling 3 1/2 games behind surprising West leader Utah.
The Nets have also been without an All-Star, though they’ve hardly missed Kevin Durant because of the brilliance of James Harden and Kyrie Irving. Blake Griffin agreed to join them Sunday night after the six-time All-Star cleared waivers after securing his buyout from Detroit.
“We’re fortunate to be able to add a
player of Blake’s caliber to our roster at this point in the season,” Nets general manager Sean Marks said.
Brooklyn comes out of the break a half-game behind Philadelphia. Embiid has been a force this season and become a leading MVP candidate, but he and Simmons were ruled out of the All-Star Game on Sunday morning because they got haircuts from a barber who tested positive for COVID-19.
They may not be cleared to return until the weekend, after the Sixers have played their first two games of the second half.
“We start on the road, back-to-back games, with one practice. That’s a challenge in itself, right?,” Sixers coach Doc Rivers said. “Then, obviously, not having those guys, that’s a lot of points, our two best defenders. So, obviously, it would hurt.”
Teams are used to it after a first half in
which the unavailability of players and coaches because of health and safety protocols forced 31 games to be called off. For every team, the first big test of the second half is the coronavirus one that will determine who is good to go upon returning from break.
Once that’s finished, teams can look ahead to a busy and exciting stretch run. With many clubs bunched in the standings and another play-in tournament opening up additional paths to the postseason, even teams that weren’t as sharp as they hoped in the first half have reason for hope.
That includes teams such as Miami and Boston — last season’s Eastern Conference finalists — plus Dallas and Golden State, all at or barely above .500 but perhaps just one hot streak from a nice leap up the standings.