• Lauren Di Lella

Race-Norming in NFL Concussion Settlements


[1]

In June of 2021, the NFL announced its decision to end “race-norming,” a practice that utilized a racial framework to determine cognitive deficits of players seeking compensation for concussion-related injuries. The issue arose out of a 2013 class action lawsuit filed against the NFL on behalf of 4,500 retired players who sought compensation for concussion-related medical expenses incurred during their football careers. [2] Ultimately, the NFL settled for $765 million and eligible players began to seek payouts in 2017 when the agreement was finalized. [3]

While the 2013 settlement seemed like a victory, Black players soon realized it was more difficult to access these funds in comparison to white players. [4] Typically, to determine how much money players are eligible to receive, the NFL requires proof that they suffered from cognitive decline. Each player must submit a cognitive deficiency test. [5] Players with more serious cognitive deficiencies are entitled to more money.


The caveat, however, was that until recently the NFL required cognitive decline test results be adjusted for race. [6] The adjustment assumed that Black players started with a lower level of cognitive brain function than white players. Thus, Black players had to prove a greater amount of cognitive decline in order to get the same settlement payout as white players. [7]

The impact of this discrepancy was far-reaching. Black players were denied payouts while white players with similar injuries received up to $5 million. [8] Since 2017, over 2,000 NFL retirees filed for dementia claims but less than 600 actually received compensation. [9] Moreover, a majority of all NFL retirees are Black, so there was a disparate impact. [10]

Critics have come down on the NFL for exploiting Black players for their talents on the field but refusing to compensate them for their injuries after the fact. Others have referred to the NFL’s practice of race-norming as an “egregious form of systematic racism” that plays on the idea that Black NFL players are “naturally less intelligent than white players.” [11]

The issue came to a head in August 2020 when two former Pittsburgh Steelers players filed a civil rights lawsuit against the NFL. They demanded compensation for concussion-related injuries after being denied awards they would have qualified for if race-norming was not used to assess their cognitive deficiencies. [12] In an effort to resolve the dispute, the NFL agreed to a $1 billion settlement and promised to end its practice of race-norming. [13] In addition, in June 2021, the NFL released a statement indicating that race-norming was never intended to be a discriminatory practice. It noted that the practice was developed in the 1990s to offer better treatment to dementia patients. [14]


However, the League recognizes the racially disproportionate impact race-norming has had on a number of retired Black players and committed to do better. An NFL representative stated that a panel of neuropsychologists, which includes two female and three Black doctors, was recently formed to propose a new testing and assessment regime. [15] The NFL also committed to apply the new norms retrospectively so that players who would have otherwise qualified for an award but for the application of race-norms will be compensated. [16]

After receiving widespread public backlash, the NFL discontinued its practice of race-norming when evaluating legal settlements for players’ concussion-related injuries. Opponents of race-norming believe it reinforces the understanding that systematic inequalities are deeply embedded within society. [17] The NFL’S decision to reverse its course demonstrates the opportunity that remains. As a multi-billion-dollar organization with a prominent social influence, it is reasonable to expect the NFL to do more to promote racial equity and equality both within the League and beyond. Until then, the NFL has taken a step in the right direction.




References:

[1] Brian Resnick, What a Lifetime of Playing Football Can Do to the Human Brain, Vox (2 Feb. 2018), https://www.vox.com/science-and-health/2018/2/2/16956440/super-bowl-2020-concussion-symptoms-cte-football-nfl-brain-damage-youth.


[2] Tracie Canada, The NFL's Racist 'Race Norming' Is an Afterlife of Slavery, Scientific American (8 July 2021), https://www.scientificamerican.com/article/the-nfls-racist-race-norming-is-an-afterlife-of-slavery/.


[3] Id.


[4] Will Hobson, How 'Race-Norming' Was Built into the NFL Concussion Settlement, The Washington Post (3 Aug. 2021), https://www.washingtonpost.com/sports/2021/08/02/race-norming-nfl-concussion-settlement/.


[5] CBS Interactive Inc., How Use of Race-Norming Resulted in Denial of Former NFL Players' Concussion Claims, CBS News (9 Sept. 2021), https://www.cbsnews.com/news/nfl-race-norming-60-minutes-plus-2021-09-09/.


[6] Matt Rourke, The NFL Will Stop Assuming Racial Differences When Assessing Brain Injuries, NPR (2 June 2021), https://www.npr.org/2021/06/02/1002627309/nfl-says-it-will-halt-race-norming-and-review-brain-injury-claims.


[7] Canada, supra.


[8] Hobson, supra.


[9] Associated Press, NFL Pledges to Stop 'Race-Norming,' Review Past Scores for Potential Race Bias, NFL (3 June 2021), https://www.nfl.com/news/nfl-pledges-to-stop-race-norming-review-past-scores-for-potential-race-bias.


[10] Id.


[11] Billy Joe, Ex-Dolphin: NFL's Double-Standard on Cognitive Testing Unfair for Retired Black Players, The Palm Beach Post (13 Mar. 2021), https://www.palmbeachpost.com/story/sports/nfl/2021/03/13/nfl-test-black-players-seeking-compensation-set-lower-cognitive-level/4652651001/.


[12] Associated Press, supra.


[13] CBS Interactive Inc., supra.


[14] Associated Press, supra.


[15] Id.


[16] Id.


[17] Lucia Trimbur, The NFL's Reversal on 'Race Norming' Reveals How Pervasive Medical Racism Remains, NBCUniversal News Group (8 June 2021), https://www.nbcnews.com/think/opinion/nfl-s-reversal-race-norming-reveals-how-pervasive-medical-racism-ncna1269992.