Two retired N.F.L. players who have filed dementia-related claims in the N.F.L. concussion settlement, and have accused the league of discriminating against Black players, want their own representative to attend a mediation aimed at addressing the use of race-based benchmarks to determine eligibility for payouts.
Kevin Henry and Najeh Davenport argued in a lawsuit that the separate scoring curves — one for Black athletes, another for white players — used by neuropsychologists to evaluate dementia-related claims “explicitly and deliberately” discriminated against hundreds if not thousands of Black players. But last week, Judge Anita B. Brody of the Eastern District of Pennsylvania dismissed their lawsuit and ordered a mediator to address her concerns about the practice.
The players are seeking a new representative because they said Christopher Seeger, the lawyer for more than 20,000 former players in the class action settlement, knew about the abuse of race-based benchmarks as early as 2018 and did not address the issue.
“It is not realistic to expect that concerns about race-norming will be addressed effectively by parties who do not view the current use of race-norming as a problem,” Henry and Davenport’s lawyer wrote in their request.
The players say that Black former players may have had their claims denied because the benchmarks used to assess rates of cognitive decline deliberately make it harder for them to receive payouts worth hundreds of thousands of dollars, an accusation Seeger denied in a phone interview on Tuesday with The New York Times.
Seeger said he was aware of a handful of objections to race-norming in the past few years. He said he intervened in at least one case and that the player received a $1.5 million payout as a result. However, “there has not been a systemic attempt to mistreat Black players in the settlement,” he said.
To remove any ambiguity, though, Seeger said he would fight to have race-norming entirely stripped from the settlement.
“I need the players to believe in me, I need them to believe in the settlement and I need them to believe they are treated fairly,” he said.
Suspicions remain. As the representative for all 20,000 players in the settlement, Seeger signed off on the use of race-based benchmarks in 2014, when the settlement was being approved. The N.F.L. and Seeger note that the use of race norms is not mandatory, though Seeger acknowledged that some doctors charged with evaluating players may be under the misguided perception that it is.
The New York Times reviewed the confidential records of eight Black former players whose claims of dementia were denied. In the cases, which date to 2018, diagnoses made without regard to race showed significant enough decline in function for the players to be eligible for payouts.
But a second doctor tossed out those diagnoses because the initial doctors had not used the race norms developed by Dr. Robert Heaton that have been standard in settlement claims.
“The NFL guidelines are very specific in requiring the use of the Heaton norms for several tests,” an appeals doctor wrote in denying a dementia diagnosis for a player whose career spanned the 1990s and 2000s. To illustrate the point, the doctor listed the player’s test scores after race-based benchmarks were applied to show there was no “evidence of significant cognitive decline.”
Lawyers who represent dozens of Black former players said that Black players with similar test scores as white players have been disqualified after racial benchmarks were used, a violation of their civil rights.
“Unlike many civil rights cases, the use of Heaton’s race-based norms is discriminatory on its face,” Justin Wyatt, a lawyer for more than 100 players, wrote in a confidential filing in 2019 after one of his clients had his dementia diagnosis overturned. “By definition, Heaton’s race based norms have the effect of treating blacks differently than whites.”
It is unclear how many Black players may have been misdiagnosed or had their diagnoses overturned. Cyril Smith, a lawyer for Henry and Davenport, claimed that white players are getting their dementia claims approved at two to three times the rate of Black players.
But Smith was unable to substantiate his claim because, he said, Seeger and the N.F.L. have not shared any data on the approval rates of dementia claims by white and Black players.
Seeger said this week that he will release that data once his investigation into the use of racial benchmarks in the settlement is completed in the coming weeks and that any claim that was “improperly affected by race-norming” will be reviewed.
Smith and Wyatt said the only way to ensure that Black players’ claims have not been mishandled is to have every one of their neuropsychological exams rescored without the use of racial benchmarks. More than 7,000 former players took free neuropsychological and neurological exams offered in the settlement. Some of them were told they did not have dementia and may be unaware of how their exams were scored.
It is unclear whether the N.F.L. will approve having every player’s exams rescored because the payouts that could result would be worth potentially hundreds of thousands of dollars each. More than $800 million in claims have already been approved for a range of neurological and cognitive diseases, and Seeger expects that amount to top $1 billion.
The N.F.L. said in a statement that there is “no merit to the claim of discrimination,” citing the use of demographic adjustments as common practice in such examinations. It contended that the number of players potentially affected by the use of race-based benchmarks is a fraction of what has been alleged because, among other reasons, “many claims were denied for reasons that have nothing to do with the norms and any rescoring would have no impact on those denials.”
The league added: “The N.F.L. nevertheless is committed to helping find alternative testing techniques that will lead to diagnostic accuracy without relying on race-based norms.”
To assess cases of dementia, doctors must estimate what a person’s cognitive skills were years ago and compare them to the patient’s current condition. In theory, race-norms are designed to help doctors approximate the cognitive skills of Black and white people in the past.
But using race to estimate one’s cognition is fraught because it does not account for factors like a person’s health, education or economic background. Many people — such as those who come from biracial families — do not fit neatly into a single racial category. N.F.L. players are also a unique group because almost all have attended at least three years of university. Comparing players to larger pools of white and Black Americans could be misleading, experts said.
“Among the scientific community, it is now widely recognized that race/ethnicity represents a crude proxy for lifelong social experiences, and biologically based racial differences in I.Q. have been debunked,” Dr. Katherine Possin, of the Memory and Aging Center at the University of California San Francisco, wrote in the journal JAMA Neurology in December. “Even with the best norms, the diagnosis of cognitive disorders should not be decided based on a plug-and-play formula of cognitive test scores.”
The debate over the use of race norms is not unique to the N.F.L. settlement. In the past, their use has led, intentionally or not, Black patients being denied treatment for many medical conditions, Darshali Vyas, Leo Eisenstein and David Jones wrote in the New England Journal of Medicine in August.
The doctors said that problems with race-norming also exist in the criminal justice system, where it is used to help determine police intervention in communities and prison sentences. Some members of Congress want to eliminate algorithms that discriminate against women and people of color by deciding everything from the type of advertisements people see online to how their applications for jobs, credit cards and other products are treated.
“Prior forms of racial discrimination based on human biases are now being embedded into algorithms that appear to be race-neutral but aren’t because they are based on data and racial profiling that went on in the past,” said Dorothy Roberts, a professor of Africana Studies, law and sociology at the University of Pennsylvania who studies the use algorithms. “Technology can be used to promote equality or perpetuate inequality. It depends on who’s in control of it and what data they are putting into the algorithms.”