Eight years ago, the NFL settled on a payout system for former players impacted by concussions. Now the settlement is coming under heavy scrutiny as the NFL’s process of determining player damages is being exposed as racist.
In February, former Steelers Najeh Davenport and Kevin Henry sued the NFL on account of the league using “race-norming” to determine whether or not they can get paid by the settlement. The NFL has been testing players to determine cognitive decline caused by time in the NFL. If players exhibit enough deviation from the test’s assumed baseline, the player is eligible for the settlement. “Race-norming” is used to set a baseline lower for Black players based on racist assumptions on average Black intelligence, as the suit filed by Davenport and Henry states. Though the line is set lower, Black players must exhibit the same sized drop-off in neurocognitive function. Meaning, Black athletes, in a vacuum, have to be substantially more mentally injured than their white counterparts to collect a payout.
Najeh Davenport suffered ten concussions in the NFL. When he joined the lawsuit against the NFL, he initially won his claim. Then the NFL appealed the ruling and had Davenport’s test recalibrated or “race-normed.” With the test results curved, Davenport lost out on the settlement.
To understand the impact this racist practice has, an attorney asked a neuropsychologist to correct the racist curve in these tests to see how it would change settlement outcomes. Out of a group of 94 tests, 34 of them passed the threshold to seek benefits from the concussion settlement. When the tests were “adjusted” for race, only ten players qualified. That is a catastrophic difference in a small sample size.
Over 20,000 people are part of the class-action concussion lawsuit against the NFL. Consider that black players make up over 58% of the current league, and you start to get a picture of how many people could be impacted by the NFL’s reliance on racist pseudoscience. There are likely thousands of Najeh Davenports whose claims have been thrown out because of the league’s discriminatory practice.
According to ALAB Podcast, Civil Tort Law is one of the only places in law where it is explicitly acceptable to determine settlement outcomes based on race, gender, and sexuality. Demographic data considering education levels, intelligence, and even life expectancy are often used to calculate payouts. In the case of the NFL, the data being used has determined that Black players are less intelligent and have weaker baseline cognitive function. While we don’t have access to the tests, what can be assumed about the data they’re working off is that nothing proves that these racist assumptions about intelligence are somehow ontological to black players.
They ignore that decades of segregation have disproportionately put Black people in poor neighborhoods with underfunded schools and generally weak social infrastructure. The baseline “lower intelligence” levels that the NFL is using to harm Black players are not ontological to race and are almost definitely linked to the mental health impact of poverty.
The NFL is not only asserting that there are natural differences between Black and white players, or the baseless assumption white players have typically superior intelligence. They are weaponizing it further to screw thousands of players out of well-deserved payment for the damage they incurred in the NFL.
We are talking about the civil justice of players who were brutally injured across years of playing football. We know how hard the NFL worked to hide the danger of concussions. Hell, that is the crux of the whole lawsuit. Thousands of players were taken advantage of and thrown out into a violent sport with little protection or care from their employer who they made billions for. Now, as they seek even a smidgen of what they deserve for their pain, the NFL is hellbent on using every tactic to limit paying former players. Somehow, in the middle of America’s modern reckoning on systemic racism, the league has no problem exacerbating that racism for their own gain.
A federal judge has asked the NFL to go back to the drawing board on the settlement process to address allegations of “race-norming.” Correcting their biased testing would not only likely deliver justice to thousands of players, but it would deal a blow to the viability of this racist practice.