The standards were created in the 1990s in hopes of offering more appropriate treatment to dementia patients, but critics faulted the way they were used to determine payouts in the NFL concussion case.
Senior U.S. District Judge Anita B. Brody later took the unusual step of asking for a report on the issue. Black retirees hope it will include a breakdown of the nearly $800 million in payouts so far by race. They fear the data will never come to light.
“The replacement norms will be applied prospectively and retrospectively for those players who otherwise would have qualified for an award but for the application of race-based norms,” the NFL said in a statement issued Wednesday by spokesman Brian McCarthy. The NFL noted that the norms were developed in medicine “to stop bias in testing, not perpetrate it.” And both Seeger and the league said the practice was never mandatory, but left to the discretion of doctors taking part in the settlement program.
The binary race norms, when they are used in the testing, assumes that Black patients start with worse cognitive function than whites and other non-Blacks. That makes it harder for them to show a deficit and qualify for an award. Henry and Davenport, for instance, were denied awards but would have qualified had they been white, according to their lawsuit, which Brody dismissed in March, calling it an improper “collateral attack” on the settlement. They have appealed the ruling.
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