PHILADELPHIA – Black retired footballers who have been denied dementia payments in the $ 1 billion NFL concussion deal may want to be prosecuted or their claims reconsidered to eliminate racial bias in the testing formula and payment according to a revised plan, finalized on Friday.
Outrage over the use of “race rationing” in dementia testing – which suggested that blacks had lower cognitive outcomes, making it difficult to show football-related mental disorders – forced the NFL and players’ lawyers to return to the table for negotiations last year.
The revisions could allow many retired players to re-file their claims and could add $ 100 million or more to the NFL’s legal section. The NFL, through the fund, has paid more than $ 800 million so far, nearly half for dementia claims. The rewards for dementia are about $ 600,000 on average.
“Thousands of black players will benefit from these changes to the agreement,” said attorney Cyril W. Smith, who represents former players Naj Davenport and Kevin Henry, whose case of racial discrimination in 2020 brought the issue to light.
Senior U.S. District Judge Anita B. Brody in Philadelphia, who has been monitoring the NFL upheaval case for a decade, rejected their claim, but ordered the parties to resolve the issue. She approved the agreed changes in an order filed on Friday.
More than 3,300 former players or their families have sought rewards for brain injury related to their playing days, with more than 2,000 for moderate to advanced dementia.
Dementia cases have been the most controversial and only 3 out of 10 claims have been paid so far. Another third are rejected and the rest remain unknown, often when the claim goes through several levels of review by the claims administrator, medical and legal advisers, audit investigators and judges.
In a recent ruling, which shows the difficulties families have faced in moving through the claims process, the reviewer complains about the long delays experienced by the former player’s widow, who was found dead after his death in 2019. advanced CTE or chronic traumatic encephalopathy.
His medical records show “progressive cognitive decline and irrefutable evidence that he suffered from CTE at the time of his death,” wrote reviewer David Hoffman.
“But these diagnoses and the supporting medical files do not fit in the prescribed boxes in the settlement for the claimed qualifying diagnosis. [of 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 normalized scores for his race, age, education and other factors, according to the protocols used at the time. According to Hoffman, this player’s claim will not qualify for a prize, even if his tests are re-evaluated according to the new formula for blind races.
The majority of players in the league – 70% of active players and more than 60% of living retirees – are black. So the changes are expected to be significant and potentially costly for the NFL.
The termination agreement follows months of closed-door negotiations between players’ lawyers, the NFL, the class counselors of nearly 20,000 retired players and NFL lawyers.
Ken Jenkins and his wife, Amy Lewis, fought for change and pressured the Department of Justice’s civil rights department to investigate the alleged discrimination.
The binary scoring system used in dementia testing – one for blacks, one for everyone else – was developed by neuroscientists in the 1990s as a rough way to consider a patient’s socioeconomic background. Experts say it was never intended to be used to determine payments in a court settlement.
However, it was accepted by both parties in the 2015 agreement, which resolved lawsuits accusing the NFL of hiding what it knew about the risk of recurrence.
The agreement also includes financial rewards for former players with Alzheimer’s disease, Parkinson’s disease and amyotrophic lateral sclerosis (Lou Gehrig’s disease). It does not cover CTE – which some call the characteristic disease of football – with the exception of men diagnosed with it post-mortem before April 2015, a deadline set to avoid encouraging suicide.