PHILADELPHIA – Black retirees who have been denied payments for dementia under the $ 1 billion NFL concussion agreement may request a re-examination or reconsider their claims to eliminate racial bias in the test and payout formula. completed on Friday.
Outrage over the use of “racial norms” in dementia testing, which believed that black people had lower baseline cognitive levels, making it harder for them to develop football-related mental deficits, forced the NFL and players’ lawyers to return to the negotiating table in the past year.
The changes could allow many retired players to re-file their claims and add $ 100 million or more to the NFL legal tab. To date, the NFL has paid more than $ 800 million through the fund, nearly half for dementia complaints. Rewards for dementia average about $ 600,000.
“Thousands of black players will benefit from these changes to the agreement,” said attorney Cyril W. Smith, who represents former players Naje Davenport and Kevin Henry, whose 2020 lawsuit against racial discrimination has exposed the problem.
Senior U.S. District Judge Anita B. Brody in Philadelphia, who oversaw the NFL concussion case for ten years, dismissed their lawsuit but ordered the parties to resolve the issue. She approved agreed changes to the order filed Friday.
More than 3,300 former players or their families have sought rewards for brain injuries related to their playing days, and more than 2,000 for moderate and advanced dementia.
Cases of dementia have proven to be the most controversial, and only 3 out of 10 claims have been paid to date. Another third have been denied, and the rest remain suspended, often as the claim goes through several stages of review by claim administrators, medical and legal advisers, audit investigators, and judges.
In a recent ruling showing the difficulties families faced in filing claims, the reviewer lamented the long delays experienced by the former player’s widow, who after his death in 2019 was diagnosed with advanced CTE or chronic traumatic encephalopathy.
His medical records show “a progressive decline in cognitive ability and conclusive evidence that he suffered from CTE at the time of his death,” writes reviewer David Hoffman.
“But these diagnoses and ancillary medical records do not fit into the settlements prescribed by the settlement for the claimed qualifying diagnosis (dementia),” said Hoffman, a contract law expert at the University of Pennsylvania Law School.
The player, a black man who was 57 when he died, also had his scores normalized based on racial age, education and other factors according to the protocols used at the time. According to Hoffman, his claim would not qualify for the award, even if his tests were listed according to a new formula for the blind race.
The vast majority of league players – 70% of active players and more than 60% of living retirees – are black. Thus, the changes are expected to be significant and potentially costly for the NFL.
The agreement to end racial rationing came after months of closed negotiations between their lawyers, the NFL, the class attorneys of nearly 20,000 retirees and NFL lawyers.
Ken Jenkins and his wife Amy Lewis fought for change and pressured the Department of Justice’s Civil Rights Division to investigate alleged discrimination.
The binary scoring system used in dementia testing – one for black people, the other for everyone else – was developed by neuroscientists in the 1990s as a rough way to take into account a patient’s socioeconomic background. Experts say it was never intended to determine payments in court.
However, it was accepted by both parties in a 2015 agreement that resulted in a lawsuit in which the NFL was accused of concealing what it knew about the risk of re-concussions.
The agreement also includes financial rewards for former footballers with Alzheimer’s, Parkinson’s and amyotrophic lateral sclerosis. It does not cover CTE – which some call a characteristic disease of football – except for men who were posthumously diagnosed before April 2015, a deadline set to avoid encouraging suicide.