Federal judge dismisses suit over ‘race-norming’ in dementia tests
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 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.