Mediation ordered on racial bias in NFL 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 show injury and qualify for awards.

A hearing had been set for Thursday. The judge instead ordered the NFL and the lead lawyer in the $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. “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 and qualify for awards. 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.

Brody has steered the litigation since the first suits were filed in 2011 alleging that the NFL had long hidden what it knew about the link between concussions and brain injuries. The judge also ordered secret negotiations that led to the surprise settlement — long before discovery or trial — in 2013.