PHILADELPHIA – A federal judge on Monday rejected a lawsuit that questioned the “racial norm” in dementia tests for retired NFL players, a practice that some say makes it harder for black athletes to show injuries and qualify for awards.
A hearing was scheduled for Thursday. Instead, the judge ordered the NFL and the lead attorney for the $ 1 billion general settlement to resolve the issue through mediation. This process appears to exclude black players who have sued.
“We are deeply concerned that the solution proposed by the Court is to order the same parties that created this discriminatory system to negotiate a solution,” said lawyer Cyril V. Smith, who represents former players Kevin Henry and Najeh Davenport. “The class of black ex-players we represent must have a seat at the table and a transparent process.”
Demographic factors that doctors consider during dementia tests often include race. In this case, lawyers say, the test assumes that black athletes start with worse cognitive functioning than whites – meaning that it is more difficult for them to run a deficit and qualify for awards. Both Henry and Davenport were denied their awards, but would have qualified if they were white, according to the lawsuit.
Smith hoped to learn the scope of the problem through discovery as the process progressed, but the dismissal by U.S. senior district judge Anita B. Brody in Pennsylvania means that he may never know how many black players have missed payments because of the practice.
Brody has been conducting the dispute since the first lawsuits were filed in 2011, claiming that the NFL has long hidden what it knew about the link between concussions and brain injuries. The judge also ordered secret negotiations that led to the surprise settlement of the case – long before the discovery or trial – in 2013.
The settlement fund has so far paid more than $ 765 million to retired players for NFL concussion-related neurocognitive problems, including about $ 335 million for dementia. Payments are expected to reach $ 1 billion long before the 65-year liquidation plan expires.
The claims of dementia proved to be especially controversial. Many of them were denied, often after NFL challenges.
Smith believes that the practice of “racial regulation” violates federal law and wants doctors to be banned from using it. He also wants to ensure that black players who have not received dementia awards have a chance to be reexamined.
Spokesmen for both the NFL and the class’s top lawyer, Christopher Seeger, did not immediately return calls seeking comment on Monday. League spokesman Brian McCarthy called the lawsuit “totally wrong” when it opened last year.
“The settlement program … was the result of comprehensive and interest-free negotiations between the NFL and the Class Council, was approved by the federal courts after a thorough review of its impartiality and always contemplated the use of recognized statistical techniques to account for demographic differences such as age, education and race, “he said at the time in a statement.
Seeger, at the time, said he saw no evidence of racial prejudice in the settlement program. He said the test was designed by renowned experts and approved by Brody and that it was up to the evaluator to decide whether to include race as a factor.
Henry, who played for the Pittsburgh Steelers from 1993 to 2000, said his claim was denied, although he suffers from headaches, depression and memory loss that keep him from getting a job.
Davenport, who played for Steelers, Green Bay Packers and Indianapolis Colts from 2002 to 2008, said he suffered more than 10 concussions, including one that broke his eye socket and knocked him unconscious. He was approved for an award until the NFL appealed, asking that his test results be recalculated using racial norms, said Smith. By that measure, his statement would fail.