In August, two former players filed a class action alleging that the concussion settlement discriminates against Black players by assuming a lower baseline cognitive function. On Wednesday, ABC News issued a report that seemingly substantiates the notion that race has been a factor in determining whether Black players receive concussion benefits.
The lengthy article can best be summarized by its opening paragraph: “The NFL insists that its concussion settlement program does not require the clinicians who evaluate former players for payouts to make race a factor in their determinations. Several of those clinicians, however, appear to disagree, and some of them fear that the league’s recommended protocols discriminate against Black players.”
ABC News has obtained emails sent through private online forums in which clinicians reportedly “lament that the league’s protocols supersede their professional judgment, sometimes leading to a ‘drastically different outcome’ for former players seeking help.” One clinician “bemoaned their possible complicity in a system that perpetuated ‘racial inequity’ in payouts.”
“Bottom line is that the norms do discriminate against Black players,” another clinician wrote. “So now what? In this time of reckoning, like many professions, I think we need to look closely at the expected and unexpected ramifications of our practices.”
At the core of this specific problem is the reality that Black players with potentially diminished cognitive capacity due to playing football are compared to an unreasonably low baseline, due to the practice known as “race-norming.” Basically, clinicians using those standards ultimately find lesser or no cognitive impairment by assuming that the pre-existing cognitive ability was lower than it would be in other players.
The NFL’s position continues to be that the concussion settlement and all protocols for implementing it resulted from a careful negotiation among the lawyers and an agreement that ultimately was approved by a federal court.
In response to questions from ABC News, the NFL said it the settlement procedures were “agreed to by all parties, with the assistance of expert neuropsychological clinicians and approved by the courts more than five years ago” and “relied on widely accepted and long-established cognitive tests and scoring methodologies.”
Added the NFL: “Normative adjustments for race, in particular, were developed to correct rather than perpetrate racial bias in neuropsychological tests which, without adjustment, were misdiagnosing Black test-takers as cognitively impaired at up to three times the rate as White test-takers. The settlement seeks to provide accurate examinations to retired players and thus permits, but does not require, independent clinicians to consider race in adjusting retired players’ test scores as they would in their typical practice. The NFL Parties play no role in the independent clinicians’ examinations, and any resulting diagnoses are reviewed by a neutral court-appointed claims administrator. Challenges to diagnoses are reviewed by neutral court-appointed special masters and ultimately the court itself.”
Christopher Seeger, who served as class counsel in the concussion lawsuit, issued a statement to ABC News supporting a clarification from the presiding judge.
“The use of race-based demographic norms is ultimately left to the clinical judgment of the neuropsychologist and is not mandated by the settlement,” Seeger said in a statement to ABC News. “To the extent that there is any perceived confusion, we would support a clarification from the Court to make it clearer that the use of demographic adjustments, including for race, is not required, and that the neuropsychologist examining a player should use their professional judgment to select the appropriate demographic adjustments to apply to the player’s test results.”
If that’s what Seeger wants, he shouldn’t issue a statement; he should file the appropriate paperwork with the court.
Ultimately, the question is whether the concussion settlement does or doesn’t illegally discriminate against based on race or, more broadly, whether the medically-accepted standards for determining cognitive impairment illegally discriminates based on race. If the answer to either question is yes, that’s a problem that someone in a position of appropriate power needs to address.