NFL judge: Lawyers for Black players can join mediation

June 3, 2021

The federal judge presiding over the NFL’s $1 billion settlement of brain injury claims on Thursday invited lawyers for Black players who call the settlement racially biased to join court-led mediation over the issue.

The lawyers have challenged the settlement’s use of “race-norming” in dementia testing since 2018. The practice assumes Black players start with lower cognitive skills and makes it harder for them to show injury and get awards from the settlement fund.

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The judge’s order comes a day after the NFL issued a public pledge to abandon the practice and formally review the scores of retired players who believe the race-based scoring adjustments deprived them of settlements that average $500,000 or more. News coverage of the NFL’s turnabout drew a degree of outrage online from people angry the league ever allowed race-norming to be used in the settlement.

In some cases, the NFL insisted on it, appealing awards if doctors had not adjusted the scores under the binary Black and non-Black scoring system.

“As the court learned from the media, the NFL has committed to eliminating racial norms from the settlement and replacing them with a new set of norms that ‘will be applied prospectively and retrospectively,’” Senior U.S. District Judge Anita B. Brody wrote in Thursday’s late-day order. She said that lawyers for former Steelers Kevin Henry and Najeh Davenport, who filed suit over the issue last year, “have presented research on the appropriate use of norms, and they may have information that would be useful to the mediation.”

Brody had dismissed their discrimination lawsuit in March on procedural grounds, but later ordered a magistrate to compile a report on the issue and include input from at least one of their neuropsychology experts. With the order Thursday, their lawyers can now play a more active role in the talks between lawyers for the NFL and lead players lawyer Christopher Seeger as they try to rewrite the scoring formula.

A panel of eight neuropsychologists, which includes two female and three Black doctors, has been formed to advise the group.

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Lawyers for Henry and Davenport did not have any immediate comment on the judge’s order. They had asked for the right to intervene in the process several months ago. Seeger, whom Brody had named class counsel in the case, opposed their motion to intervene in March and said he saw no evidence of any race bias in the administration of the fund. On Wednesday, he apologized, saying he now saw the problem more clearly and hoped to regain the trust of Black players.

The 2013 settlement ended thousands of lawsuits that accused the NFL of long hiding what it knew about the link between concussions and traumatic brain injury.