By: Francesca Oliveira
Former National Football League (“NFL”) players filed suit[1] against the NFL for using discriminatory practices to determine whether players qualify for NFL concussion settlement payouts.[2] In 2020, Kevin Henry and Najeh Davenport, two retired Black NFL players, filed suit “accusing the league of ‘explicitly and deliberately’ discriminating against Black players filing dementia-related claims.’”[3] The NFL characterizes the accusation as “entirely misguided” and shifts all potential blame to the clinicians administering the examinations.[4] Three ABC News journalists investigated the allegations and uncovered the role race plays in determining payout eligibility.[5] In the wake of 2020, a year filled with racial turmoil, American society collectively pledged to examine traditional practices in all fields to root out both implicit and explicit racism and bias.[6] Henry and Davenport’s suit against the NFL illustrates what appears to be an ongoing racial bias both within the NFL and the scientific community.
The ABC News investigation found that the clinicians administering the neurocognitive assessments relied on the NFL manual, which called for the use of “race-norming.”[7] Several clinicians spoke with regret while voicing concerns about the NFL’s protocols, characterizing the protocols as superseding their professional judgment and not allowing flexibility in administering the neurological assessments.[8] One clinician stated, “[m]y experience is that when clinicians deviate from the algorithm, there are multiple inquiries levied at them.”[9]
Through race-norming, the assessments place Black players at a lower cognitive function than white players.[10]By utilizing demographic correction, clinicians base their analysis of data on “norms” which places “the average Black [player’s initial base] at a lower level of cognitive functioning than the average white player at the outset of their careers, [which then requires] Black players to show larger cognitive declines than white players to qualify for compensation.”[11]In response to race norming, several Harvard-affiliated doctors wrote a paper concluding that “[w]hen clinicians insert race into their tools, they risk interpreting racial disparities as immutable facts rather than as injustices that require intervention.”[12] The paper further recommended that “[r]esearchers and clinicians [] distinguish between the use of race in descriptive statistics, where it plays a vital role in epidemiologic analyses, and in prescriptive clinical guidelines, where it can exacerbate inequities.”[13] Some clinicians administering the assessments are seemingly frustrated by their role and complicity in perpetuating “racial inequity in payouts,” acknowledging they should have “been better advocates.”[14]One clinician stated, “[b]ottom line is that the norms do discriminate against Black players”; “[s]o now what?”[15]
Decades of research and advocacy regarding the long-term impact of repeated brain trauma experienced by NFL players led to the 2014 NFL concussion settlement.[16] More than 4,500 former NFL players filed a class-action lawsuit against the NFL for “concealing the dangers of concussions and rushing injured players back onto the field.”[17] The settlement provided that “individual awards [] be capped at $5 million for men with Alzheimer’s disease; $4 million for those diagnosed after their deaths with a brain condition called chronic traumatic encephalopathy; and $3 million for players with dementia.”[18] Several controversies linger over the settlement, but Henry and Davenport’s accusations highlight how the NFL financially benefits from the use of racial bias in determining payout eligibility.[19]
Henry and Davenport are attempting to hold the NFL accountable and demonstrate the racial bias’s monetary consequences. When institutions like the NFL and the scientific community fail to address their discriminatory and biased practices, the only remaining pathway to effective accountability is litigation. In an organization where seventy percent of players are Black, using discriminatory practices in determining whether a retired player qualifies for compensation directly benefits the party obligated to pay: the NFL.[20] To date, “more than two-thirds of the approximately 3,000 dementia-related claims have been denied.”[21] A favorable ruling could prompt further legal action against the NFL, the scientific community, and other organizations utilizing similar race norming protocols in neuropsychological assessments. This suit presents an opportunity to assess the NFL’s true commitment to promoting racial equality and justice within the organization. In simpler terms, it is time for the NFL to put both its money and resources where its mouth is.
[1] Complaint at 1, Henry, et al. v. National Football League, et al., No. 2:20-cv-04165-AB (E.D. Pa. Aug. 25, 2020).
[2] Pete Madden, et al., Clinicians Fear NFL’s Concussion Settlement Program Protocols Discriminate Against Black Players, ABC News (Feb. 3, 2021), https://abcnews.go.com/Sports/clinicians-fear-nfls-concussion-settlement-program-protocols-discriminate/story?id=75646704; Matt Ventresca & Kathryn Henne, NFL Concussion Lawsuit Payouts Reveal How Racial Bias in Science Continues, The Conversation (Sept. 17, 2020), https://theconversation.com/nfl-concussion-lawsuit-payouts-reveal-how-racial-bias-in-science-continues-145987; Ken Belson, Black Former N.F.L. Players Say Racial Bias Skews Concussion Payouts, N.Y. Times (Aug. 25, 2020), https://www.nytimes.com/2020/08/25/sports/football/nfl-concussion-racial-bias.html.
[3] Madden, supra note 1.
[4] Id.
[5] Id.
[6] See Gillian Friedman, Here’s What Companies Are Promising to Do to Fight Racism, N.Y. Times (Aug. 23, 2020), https://www.nytimes.com/article/companies-racism-george-floyd-protests.html (highlighting the corporate pledges of solidarity in fighting racism especially focusing on internally championing inclusivity); see also Jocelyn Kaiser, NIH Director Apologizes for ‘Structural Racism,’ Pledges Actions, Science Mag (Mar. 1, 2021), https://www.sciencemag.org/news/2021/03/nih-director-apologizes-structural-racism-pledges-actions (acknowledging the role of structural racism within the healthcare industry and pledging action to combat racism and bias within the health and scientific communities).
[7] Madden, supra note 1.
[8] Id.
[9] Id.
[10] See id. (“The NFL’s concussion settlement program manual recommends the use of a ‘full demographic correction,’ in which a player’s cognitive test scores are compared to average scores, or ‘norms,’ for similar demographic groups, and then adjusted to account for expected differences in age, gender, education — and race.”).
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Ventresca & Henne, supra note 1.
[17] NFL, Ex-Players Agree to $765M Settlement in Concussions Suit, https://www.nfl.com/news/nfl-ex-players-agree-to-765m-settlement-in-concussions-suit-0ap1000000235494 (last visited Mar. 1, 2021).
[18] Id.
[19] Ventresca & Henne, supra note 1.
[20] Walter Sharp, What Percentage of NFL Players Are Black?, Sportskeeda (Feb. 9, 2021), https://www.sportskeeda.com/nfl/what-percent-nfl-players-black.
[21] Ventresca & Henne, supra note 1.
