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Thousands of retired Black NFL players fight back against racial bias in brain injury payouts

Thousands of retired Black NFL players want to end the race-adjusted system used to determine cognitive decline among claimants in the league's near-billion-dollar concussion settlement.

Why it matters: The test is scored on a curve that assumes Black people's baseline cognitive skills are lower than white people's, meaning Black players must show a larger cognitive decline to qualify for the settlement.


The backdrop: In 2013, the NFL agreed to a $765 million settlement in response to a flood of lawsuits from retired players alleging the league concealed what it knew about the dangers of repeated head trauma.

  • The $765 million cap has since been removed, and nearly $848 million has been awarded to 1,256 retired players to date.

How it works: Those who claim their careers led to dementia or similar cognitive diseases are required to undergo medical testing to determine if the extent of cognitive decline makes them eligible for compensation.

  • An independent physician evaluates these claimants by testing things like their processing speed and visual perception. The test is graded on a curve depending on demographic factors, including race.
  • In other words, the same score by a Black and white player could net the latter hundreds of thousands of dollars while the former sees his claim denied entirely.

The origins: This methodology originated in the early 1990s, when Robert Heaton studied how socioeconomic factors can affect health. To create his race-based protocol, he used a small group of Black people from San Diego — hardly a representative sample.

[rebelmouse-proxy-image https://media.rbl.ms/image?u=%2FAwgoHbmXmDh-UrXeaJ5eUXq7uFo%3D%2F2021%2F05%2F21%2F1621602389742.jpg&ho=https%3A%2F%2Fimages.axios.com&s=788&h=f30978726cfb64ae07c2052c96e73701b9722f794a7c2d48c3474f76a3d7b321&size=980x&c=3600457303 crop_info="%7B%22image%22%3A%20%22https%3A//media.rbl.ms/image%3Fu%3D%252FAwgoHbmXmDh-UrXeaJ5eUXq7uFo%253D%252F2021%252F05%252F21%252F1621602389742.jpg%26ho%3Dhttps%253A%252F%252Fimages.axios.com%26s%3D788%26h%3Df30978726cfb64ae07c2052c96e73701b9722f794a7c2d48c3474f76a3d7b321%26size%3D980x%26c%3D3600457303%22%7D" expand=1]
Ken Jenkins in 1986. Photo: Owen C. Shaw/Getty Image

Driving the news: Former running back Ken Jenkins delivered a 50,000-signature petition to the judge presiding over the settlement last week, demanding Black players receive equal treatment.

  • That same judge two months ago dismissed a civil rights lawsuit brought against the NFL regarding the potentially discriminatory practice, though she did commission a report to further explore it.

What they're saying: "We are investigating whether any claims have been impacted by a physician's decision to apply such an adjustment," Chris Seeger, class counsel for the players, told AP.

  • "If we discover an adjustment has been inappropriately applied, I will fight for the rights of Black players to have those claims rescored."

The other side: "There is no merit to the claim of discrimination," the NFL told Axios in a statement. "The availability of demographic adjustments was designed to avoid misdiagnosis of healthy individuals as cognitively impaired."

  • "The NFL nevertheless is committed to helping find alternative testing techniques that will lead to diagnostic accuracy without employing race-based norms."

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