Oops! Who would have guessed that the NFL, after committing $250 million to combat “systemic racism,” would uncover the sort of racism in their own systems that they are committed to fight?
As part of a more than $1 billion settlement of class-action concussion litigation against the NFL, the league said Wednesday it would stop “race-norming” in dementia cases.
That racial bias in the league’s method of evaluating dementia claims by its former players apparently was so subtle that even the players’ lead attorney apologized for failing to pay more attention to it earlier.
“Ultimately this settlement only works if former players believe in it,” Christopher Seeger, who negotiated the players’ landmark 2013 concussion settlement, said Wednesday in a statement, “and my goal is to regain their trust and ensure the NFL is fully held to account.”
Good luck with that. Lawyers for Kevin Henry and Najeh Davenport, the two retired players who had filed the discrimination suit against the league, asked the court to replace Seeger in March.
The two filed a civil rights suit and a suit against the settlement that accused the league of using separate race-based benchmarks for determining eligibility for dementia-based payouts, which can be worth hundreds of thousands of dollars.
Henry, who retired at age 33 from the Pittsburgh Steelers after eight seasons, and Davenport, who retired at 29 after seven seasons with the Green Bay Packers, had applied for payments and were denied under an evaluation system that they credibly argue penalized them for not being white.
At issue is “race-norming,” a system for evaluating claims that assumes Black players seeking compensation under the league’s concussion settlement have lower cognitive function before they even begin to be tested for brain damage.
“That’s literally the definition of systemic racism,” said Davenport, and numerous other critics, including me.
Indeed, the practice of adjusting test scores to account for the race or ethnicity of the test taker, is like many other remedies that create new problems. It was first implemented in the 1980s and outlawed by the Civil Rights Act of 1991.
But the increasingly disputed practice continued in neuropsychology, using race as a rough proxy for other factors, such as socioeconomic background and education. The NFL claimed there is “no merit” to charges they discriminated unfairly since the protocols were designed “to stop bias in testing, not perpetuate it.”
Ah, but the law of unintended consequences rears its ugly head in many mysterious ways. Race-norming in this instance is one of them, coming off as the worst nightmare of affirmative action opponents.
I support affirmative action that takes reasonable steps to expand and diversify employment or education opportunities. Yet when race becomes not just a factor but the only factor in such decision making, no one should be surprised that alarm bells go off.
In this example, race is simply too rough of a standard to make judgments about something as critical and complicated as one’s cognitive health — or something as personal as the average condition of retired NFL athletes.
What other profession subjects a person to the sort of punishment that Kevin Henry, now 52, ticked off in a list of injuries he noted during an ABC News report that helped lead to the players’ discrimination suit and the NFL’s dropping of race-norming.
“Both knees, both elbows, both wrists, all my fingers have been broken,” he recounted. “I’ve had 10 concussions or more. I’ve had at least 17 surgeries. Seventeen! And I’m still gettin’ ‘em.”
“Football doesn’t give you an expiration date,” he said. “You just expire.”
And we’re talking about the NFL only a year after the league announced a commitment of $250 million over 10 years to fight “systemic racism,” battle “historic injustices faced by African Americans” and support programs to “address criminal justice reforms” and “police reforms” among other issues.
Gee, those sound like the sort of reforms for which former quarterback Colin Kaepernick repeatedly took a knee to protest.
With Black players making up roughly 60% of NFL teams, it’s not surprising that the league has tried to stand on the right side of the past year of racial reckoning. They can begin with fairness to their own players, past and present.
“I just want to be looked at the same way as a white guy,” said Davenport.
He deserves at least that much.