When the NFL recently found itself caught up in a controversy over “race-norming” in cognitive tests used in processing claims for its concussion settlement, former players shook their heads in sad recognition.
The settlement the league agreed to seven years ago in response to concussion-related lawsuits — after years of denial and delay — hasn’t really settled very much, it seems.
Former Eagles Pro Bowl defensive end Hugh Douglas said that not long after the settlement was announced, he was admonished not to be naïve about what it meant.
“I had a friend of mine tell me one time, he said to me: ‘Do you really think that the NFL is going to make it that easy for anybody to get money?’ ” Douglas said.
Douglas’ Eagles teammate, ex-linebacker Ike Reese, said he was “not surprised” by the controversy. “Obviously, I’m saddened by it. Nobody is going to want to come off that type of money without a fight, or [without] figuring out how to come off of it as little as possible.”
The NFL has promised to end race-norming in assessing claims and a panel of neuroscientists is supposed to present a new testing regime to Senior U.S. District Judge Anita B. Brody, based in Philadelphia, who presides over the settlement.
Here’s a brief-as-possible explanation of how we got here, for people who might not have followed every twist and turn.
History behind it
In 2014, the NFL agreed to pay $765 million to settle lawsuits over former players who claimed cognitive impairment from football. Eventually, the $765 million figure was scuttled and the settlement became open-ended. So far the fund reportedly has dispersed about $850 million.
Reports indicate that more than 2,000 retirees have filed claims, but fewer than 600 have received awards, which, so far, average $516,000. To get money, you can’t just send the league a note from your doctor. There is an assessment process, which is where the recent controversy erupted.
ABC News reported that it had obtained e-mails in which doctors involved in the settlement program wrote that they felt race norms were mandated by the set of tests used. Those norms were devised in the 1990s so that the neuropsychological community could more accurately and appropriately treat Black dementia patients, after studies showed that socio-economic background and education level could affect the results of memory and learning tests. Back then, this had nothing to do with the NFL or concussions.
It isn’t clear that Black NFL players even fit the assumptions behind race-norming. Almost all of them have been to college, and they come from varied socio-economic backgrounds.
But in the concussion settlement, the extent of impairment is measured from a baseline. If that baseline is lower for Black ex-players — currently about 70% of the league is Black — then the testing might not show as dramatic a difference for them as for White players assumed to have started at a higher point. So the league would end up not paying out as much. Claims would be denied that would have been paid otherwise.
It could be that no one involved intended this result, but the fact remains that no one did anything about it until two former players, Najeh Davenport and Kevin Henry, sued the league over this process. Brody dismissed their suit, but she directed a mediator to examine the situation.
Publicity followed, and suddenly the league and Chris Seeger, an attorney for the group of players in the original suit, disavowed the practice.
“I was wrong. I didn’t have a full appreciation of the scope of the problem,” Seeger told ABC News. “You think you know everything. Sometimes you don’t. But the closer I looked, the more I realized that this had to go.
“I’m really sorry that anybody, any client of mine in this program, has been made to feel that way. That is a big mistake. It was a failure of the system. I’m a part of that. But I’m also a part of getting it fixed.”
Seeger later vowed to “get every claim impacted by race-norming rescored.”
The NFL wasn’t quite that empathic, but it did issue this statement:
“We are committed to eliminating race-based norms in the program and more broadly in the neuropsychological community. The parties to the settlement have been working with the magistrate judge and have assembled the leading members of the neuropsychological industry to help identify alternative testing techniques.
“Everyone agrees race-based norms should be replaced, but no off-the-shelf alternative exists, and that’s why these experts are working to solve this decades-old issue. The replacement norms will be applied prospectively and retrospectively for those players who otherwise would have qualified for an award but for the application of race-based norms.”
A pattern of not doing enough
To former players such as Douglas and Reese, this latest flap fits into a pattern of the league and even its players union not doing enough for the people who built the game. The uncapped nature of the concussion settlement makes the claims process more adversarial than it might be if a specific figure had been agreed upon. (The figure $1 billion often is mentioned in stories, but it is merely a projection of the ultimate cost.)
Reese said he feels part of the problem is that owners need to shed the old-time notion of their relationship with the players as purely employer/employee.
“It’s taken a lot of these owners a long time — and some of them still haven’t been able to accept it — to understand that they’re in a partnership with the players,” he said.
The NFL Players Association, by the way, wasn’t a party to the suit and isn’t involved in the settlement. Neurocognitive impairment benefits are available through the union, and NFLPA executive director DeMaurice Smith said recently that there is nothing on the application form about race.
Douglas, 49, and Reese, 47, are like a lot of former NFL players. They go through life wondering, every time they forget where they parked or struggle with a name, if this is a warning sign.
“It’s hard to tell,” Reese said, when asked if he felt any cognitive effects from football. “You don’t know what’s part of just natural aging, and [what isn’t]. I don’t have any major symptoms that concern me.”
Douglas recounted being evaluated a few years ago, and telling the tester he didn’t have mood swings or periods of forgetfulness, only to have his then-wife remind him of just such incidents.
“I try to do little exercises to remember stuff,” said Douglas, who hosts a daily radio sports talk show in Atlanta, as Reese does in Philadelphia.
Douglas said he isn’t thinking about money for himself when he contemplates the possibility of a concussion settlement.
“I don’t want to be a burden to my family, in case something does happen to me. In that way, it’s not financially crippling them trying to keep me around,” he said.
“I’ve lived a pretty damn good life, and I’m still doing that. It’s more about say, my kids, if they had to come back, ‘Who’s going to take care of Dad?’ … I don’t want for them to be frustrated and change the way that they’re living in order to accommodate me, if something like that happens.
“A lot of people say, ‘Well, you knew what you signed up for.’ Yeah, I did. But my kids didn’t. They didn’t sign up for that.”