NFL accused of 'systemic racism' in handling brain injuries

The NFL is coming under growing pressure from critics who say its landmark concussion settlement treats ex-players differently based on race, making it more difficult for Black retirees to get payouts.

Critics argue the settlement amounts to a form of systemic racism because it uses race-based criteria for neuropsychologists to assess whether Black and white former players have valid dementia-related claims stemming from their professional football careers.

The concept of using different statistical curves based on race, known as “race-norming,” is inherently controversial. It is also the subject of a lawsuit by two ex-players, Kevin Henry, a lineman for eight seasons in the NFL, and Najeh Davenport, a running back for seven seasons, who sued the league last year for race discrimination.

Attorney Christopher Seeger, who negotiated the settlement on behalf of roughly 20,000 ex-players in the class action suit, now also faces mounting criticism. 

A petition signed online by more than 50,000 people will be presented on Friday to U.S. District Judge Anita Brody, who presided over the settlement. It asks that Brody, who chose Seeger as lead counsel for the class of NFL retirees, select a new attorney to represent the former players, about 70 percent of whom are Black.

“This is classic systemic racism,” said former NFL player Ken Jenkins, who will deliver the petition with his wife Amy Lewis. Both are advocates for Black NFL retirees, though Jenkins is not a party to any individual lawsuits and is not suffering from head injuries due to his playing career.

“Just because I'm Black, I wasn't born with fewer brain cells,” Jenkins said.

Neither Henry nor Davenport, who are both Black, have had their brain injury claims accepted by the NFL. Each suffered multiple concussions across their careers and say they still feel the repercussions, with symptoms ranging from memory loss and depression to overall cognitive impairment affecting their daily lives. 

Their lawsuit claims that in Henry’s case, an NFL-approved clinician initially found that he qualified for mild-to-moderate dementia, but his claim was nonetheless denied. A second clinician, after adjusting his raw scores using a “full demographic model … which includes age, education, race/ethnicity and gender,” found he did not qualify as impaired under the settlement. 

For his part, Henry, 52, said he feels like a different person now as a result of the multiple concussions he sustained over his career with the Pittsburgh Steelers.

“I had more friends. I was more social. I could carry on a conversation without repeating where I was in the conversation. I could find my way around the city better. I could drive without having accidents. Those kinds of things have all changed,” Henry said. “I’m more of a reclusive person now.”

Henry said it’s painful to watch the NFL portray itself as a social justice ally while denying him compensation for what he and his wife, Pamela, say is clear impairment. 

“They come out with all these slogans like ‘We care’ and ‘Black Lives Matter,’” Henry said. “And I’m sitting there, like, you’re lying. You’re lying out of your teeth. It's so painful to sit there and watch, knowing that you know something totally different.”

Brody, who was appointed to the federal bench by former President George H.W. Bush, dismissed the Henry and Davenport suit in March, though they have since appealed. She said the players’ lawsuit was an improper attack on the court-approved settlement deal reached by the NFL and Seeger.

But in her ruling Brody also said she “remains concerned about the race-norming issue,” and ordered the NFL and Seeger to address the matter.

The issue is also getting some attention in Washington. Sen. Ron Wyden (D-Ore.), the chairman of the powerful Senate Finance Committee, wants to see the NFL eliminate the use of racial criteria for assessing brain injury claims.

“He is committed not only to ensuring the NFL stops using the race-based formula going forward," Wyden aide Keith Chu said, "but also to ensuring any player previously denied benefits, or who chose not to apply because of the formula, is notified and given the opportunity to retest in order to get the benefits they deserve."

The estimated $1 billion 2015 court-approved settlement has paid around $800 million in claims so far. Amounts range from around $27,000 up to $5.3 million, depending on a retiree’s age and degree of impairment. 

In a statement, Seeger defended race-norming, saying it had been used for decades. But he added that he is continuing to investigate whether former players have “been disadvantaged in any way by the application of race norms.”

“Moving forward, we are focused on eliminating the use of demographic norms that adjust for race, and putting into place purely race-neutral demographic norms,” he said.

The NFL said there is “no merit” to charges of racial discrimination in the payouts, and downplayed the role that race-norming has had in assessing ex-players’ impairment levels.  

Brian McCarthy, a spokesman for the NFL, said “the number of players potentially affected by the use of race-based normative adjustments is a fraction of what has been alleged.” But he did not respond when asked to substantiate that claim with data showing a breakdown of settlement awards by race. 

Like Seeger, McCarthy also defended the current form of testing, while expressing an openness to finding race-neutral alternatives.

“The NFL nevertheless is committed to helping find alternative testing techniques that will lead to diagnostic accuracy without employing race-based norms,” he said. “As requested by the Court, the NFL is working with Class Counsel, and the parties’ respective medical experts, under the guidance of the federal magistrate judge, to that end. We understand that the Court intends to solicit the views of interested parties as part of the process.”    

The norms are essentially estimates of how an average person with a healthy brain would score on various thinking and memory tests, and the estimated score is lower for Black people than whites. 

Without pre-NFL test scores for retirees, race norms are used as a kind of gap-filler. The approach assumes that if Black and white players had taken the exact same cognitive test before the start of their NFL careers, Black players would have scored significantly lower. And this lower baseline, in turn, makes it harder for Black ex-players than whites to demonstrate that playing football caused a significant reduction in brain functioning. 

The race-specific norms used by the NFL, known as the “Heaton norms” after its lead researcher, come from a 2004 study which found that a sample of African Americans performed significantly worse on a battery of cognitive tests than their white counterparts.

The league argues that race-norming helps to avoid false dementia diagnoses in healthy ex-players.

“Race-based, demographic adjustments were specifically designed by neuropsychologists to correct for the fact that certain racial groups — even when matched on other demographic factors — were consistently obtaining disproportionately low scores on cognitive testing and were being incorrectly classified as cognitively impaired at unacceptable rates,” the NFL told Wyden and other lawmakers last year in response to a letter.  

But Philip Gasquoine, a neuropsychology professor at the University of Texas Rio Grande Valley, said he believes the method amounts to systemic racism. Although the practice is used in the field of neuropsychology, he argued, it should be scrapped.

“There's a lot more interest in the term ‘systemic racism’ now than it was 20 years ago,” Gasquoine said. “That’s hard to define, but I think race norms probably does fall within that definition.”

He said there’s no question that the system makes it harder for Black players to qualify for settlement money, since if a Black former player gets “exactly the same score on the test as the white player, because it was estimated that the pre-existing score was lower, they've got less chance of being diagnosed with dementia, and so they don't get the compensation.”

Robert Heaton, a professor at the University of California, San Diego School of Medicine, in an interview with The Hill defended the evaluation method he devised.

“The science supports it, as a general practice,” he said. “If the nay-sayers think NFL players are different, cognitively, than people in the general population, they should show the data that supports that belief.”

Yet critics note that the benchmarks used by the NFL for Black and white players are based on the overall U.S. population, not the universe of ex-NFL players, almost all of whom attended college.

Katherine Possin, a professor at the University of California, San Francisco, in a JAMA article described the use of race-norming as “reminiscent of a damaging, century-long history of assuming that differences on intelligence tests are primarily inherited, and then using this false assumption to legitimize unequal distribution of resources by social class.”

Federal law bans the use of race norms in certain situations, like calculating test scores for would-be employees, but it continues to be used in neuropsychology despite controversy.

The NFL and Seeger, the lawyer for the class of retired players, have said race-norming is not mandatory under the settlement. They claim that whether or not to use the racial criteria is left to the discretion of clinicians.

But that assertion is at odds with other accounts. 

Daniel Kantor, the president emeritus of the Florida Society of Neurology, said the use of the norms “was not discretionary” when he conducted brain injury assessments from 2017 through 2019 as part of the NFL’s concussion settlement. 

“If I got a report from a neuropsychologist that did not use the ‘Heaton factors,’ it would be questioned then invalidated, based on not using them. This was not voluntary,” he said.

Private emails between neuropsychologists involved in the NFL’s cognitive assessment program that were revealed in an ABC News investigation also showed that some clinicians believed they were required to use the race-norming. 

That investigation also provided some hints as to the impact of race-norming. An analysis by one neuropsychologist, acting at the request of a lawyer involved in a lawsuit against the NFL, found that around three times more Black former players would have qualified for compensation if race norms were removed.

As talks go on, former players and their families continue to struggle, says Jenkins, the former player-turned-advocate, and wife Amy Lewis. Jenkins, who retired from the NFL in 1986 after a four-year career, is not seeking compensation from the league, though many of their friends' attempts have been unsuccessful, the couple said.

“I know three women whose husbands have died in the interim, and they got nothing,” Lewis said. “There are so many of our friends who are deeply suffering.”