Black Former N.F.L. Players Say Racial Bias Skews Concussion Payouts

Two retired players have accused the N.F.L. of “explicitly and deliberately” discriminating against hundreds if not thousands of Black players who filed dementia-related claims in the landmark concussion settlement reached in 2013, making it harder for them to qualify for payouts worth as much as $3 million.

In two legal actions filed Tuesday in United States District Court in Philadelphia, the players asked that the judge stop the league from insisting that race-based benchmarks be used to evaluate players’ claims. They also asked that the scores on Black players’ neurocognitive exams be recalculated using “race-neutral” scales that would put them on an even footing with white players.

“In effect, the settlement, as it has been administered, has a white door and a Black door,” said Cyril Smith, a partner at Zuckerman Spaeder and the lead counsel for two players who are Black, Najeh Davenport, a former running back, and Kevin Henry, a longtime defensive end. “Although the neurocognitive tests behind each door are the same, the raw scores for Black and white former players are interpreted differently when they are converted” to scores that are used to determine whether a player is eligible for a payment.

The N.F.L. had not responded to request for comment at the time of publication.

The allegations of systematic discrimination are the latest and perhaps most damning criticism of the settlement, which has been stung by delays, predatory lenders, accusations of fraud and a lack of transparency since players began filing claims four years ago.

They come at a particularly awkward time for the N.F.L., which has battled the perception that it has dismissed the concerns of Black players, who make up about 70 percent of the league’s active players.

Smith said using two scoring curves, one for Black athletes and one for white, violates federal law and unfairly hurts Black players. “The N.F.L. has a choice to make: Live up to its word and treat Black players like their lives matter, or continue pushing them aside,” he said.

Some former players, referring to the difficulty of collecting on the health benefits won in labor negotiations over the years, have adopted the phrase, “delay, deny and hope you die” to characterize the league’s approach to approving benefits applications. In March, about 400 former players on total and permanent disability learned that they would have their payments significantly cut starting next year.

The concussion settlement has been criticized for, among other things, its cutoff date of April 22, 2015: It does not cover players who die after that date and are found to have chronic traumatic encephalopathy, or C.T.E., a degenerative brain disease linked to repeated head hits. Ex-players have been frustrated that the league has challenged the diagnoses they received before the settlement. Many claims have been appealed by the league and audited by the settlement administrator, and hundreds of players have had their appeals denied.

It is unclear what percentage of Black players have had their dementia claims denied compared to white ex-players because the settlement administrator does not publish data on the race of applicants. However, lawyers for the two players who brought the legal actions this week said that a majority of the 20,000 or so retirees are Black. About two-thirds of the roughly 3,000 claims submitted by all ex-players have been for dementia, and about three-quarters of those claims have been denied.

In a statement, the N.F.L. called the lawsuit “entirely misguided” and said the settlement “always contemplated the use of recognized statistical techniques to account for demographic differences such as age, education and race.”

“The point of such adjustments — in contrast to the Complaint’s claims — is to seek to ensure that individuals are treated fairly and compared against comparable groups.” Doctors, the league said, are not required the use of any particular adjustments.

Christopher Seeger, the class counsel for all plaintiffs in the settlement, said the testing and diagnostic criteria were designed by leading experts and approved by the judge overseeing the case, Anita B. Brody. He added that the special master, who hears evidence and makes recommendations to the judge in appeals, said doctors can use racial norms at their discretion and that not having used them is not enough to deny a claim.

“We take any concern raised by former players seriously, and while we have not seen any evidence of racial bias in the settlement program, we will further investigate the issue and respond to this motion accordingly,” Seeger said in a statement.

But legal experts said that using race to determine whether people get benefits, as described in the players’ legal filings, is fundamentally unlawful.

“The allegations are troubling,” said Thomas Berg, who teaches law and public policy at the University of St. Thomas School of Law in Minneapolis. “If a racial factor is being used against a historically disadvantaged group to deny benefits that they would otherwise receive, that is illegal.”

Players with dementia and neurological conditions including amyotrophic lateral sclerosis, or Lou Gehrig’s disease, and Parkinson’s disease can receive payouts under the settlement based on the number of years they played in the N.F.L. and their age when they were diagnosed. Cases involving diagnoses of A.L.S. have reached up to $5 million. So far, 1,176 claims, or about one-third of all applications, have been approved for payouts worth $800 million before deductions to pay lawyers, Medicare and other liens.

Claims for dementia have been rejected at far higher rates than those for Parkinson’s, A.L.S. and other conditions. Lawyers for the players blame the racially based scales that are buried not in the publicly available settlement, but in the confidential manual given to doctors who test players’ cognitive abilities. These so-called Heaton Norms, named for Robert Heaton, a neuropsychologist who helped develop them, are intended to correct for racial or ethnic differences, along with other variables such as age, education and gender.

The “norms” are essentially benchmark average scores on thinking and memory tests, and the benchmarks are lower for Black people than whites. This is intended, ostensibly, to prevent misdiagnoses.

But the science is far from settled, and the averages are based on the general population, not specialized groups like N.F.L. players, almost all of whom have attended college. In practice, this means Black players have to show steeper cognitive declines to qualify for a payout.

“The norms are appropriate for use in clinical interpretations of an individual’s performance,” said Robert Stern, a neuropsychologist and professor of neurology at the Boston University School of Medicine who raised some of these issues in a declaration submitted to the court in 2014. “But when they are used across the board in an algorithm to determine monetary compensation, it is inappropriate and results in injustice and racial inequities.”

The data also does not account for people who are biracial or for the diversity among those who identify as Black, according to researchers who have studied neuropsychological testing of Black people.

While doctors are not explicitly required to consider race when evaluating player scores on neurocognitive exams, the league has appealed cases in which Black players did not have their scores measured against a Black population and won payout for dementia.

That’s what happened to Najeh Davenport, who spent seven years with the Green Bay Packers, Pittsburgh Steelers and Indianapolis Colts through the 2008 season. A hard-nosed running back, he sustained at least 10 concussions, including one that stemmed from a hit so crushing it broke bones in his eye socket, requiring surgery. After he retired at 29, Davenport worked on a documentary, earned an advanced degree in education, and became a teacher. But Davenport said he had to stop working when his memory loss, quick temper and depression escalated.

When Davenport took a neurological exam in 2019, an N.F.L.-approved doctor found that his use of language and his executive functioning — or ability to manage and regulate his mental processes — were diminished enough to qualify for compensation. The doctor did not apply the special scale used to test Black players. Davenport received a letter that confirmed he was eligible for a payout.

The N.F.L. appealed the award and said that when Davenport’s scores were recalculated accounting for his race — something the league called an “industry standard” — Davenport was not impaired in any category, and ineligible for a payout. The use of these scales “materially and critically affected the outcome of Mr. Davenport’s claim,” the league wrote.

“You give this game so much. Just to think that they would do that just to save a few dollars, it’s disheartening,” Davenport said. “Regardless that my teammate was white, we fought together, but at the end of the day, when it has to do with the settlement, we’re discriminated against.”

Last week, the special master acknowledged that “African-American-specific norms increase the rate of false negatives” and that some Black ex-players “may be denied access to necessary benefits or compensation solely on the basis of race.”

But the special master did not claim the practice was unlawful or question the N.F.L.’s reliance on a player’s race when determining whether he qualifies for a payout. Instead, the special master asked Davenport’s doctor to explain why he did not use the Black scales.

Kevin Henry also had a substantial number of concussions during his eight-year career with the Steelers, as well as many orthopedic injuries. After he was released at 33, he returned home to Georgia and fell into a depression for about two years. He eventually landed a job at Coca-Cola, but he said he left after about a year because his depression resurfaced and his temper began to flare. Henry has not worked full-time since.

So his wife, Pamela, went to work while also managing Kevin’s mood swings, outbursts and increasing memory loss. “He can go from zero to 10 real quick,” she said. “He’s deteriorating right in front of me.”

In 2017, Kevin took a neurological exam and the doctor concluded that he was impaired in three different areas, including learning and memory. His claim was denied because “incorrect normative scores were provided” and when the “correct Heaton norms were used” there were “significant” differences on several test scores.

When Henry took a second exam, his doctor adjusted his results using the special scale for Black players. His claim was denied again. Henry said he sacrificed his body to play in the N.F.L. and feels let down that the league is not acknowledging the cost he is now paying.

“I just feel betrayed by the N.F.L., I want to make that clear,” he said. “It just makes all this that much harder to take.”