Then Cunningham tried to speak. Thoughts form in his head, he explained, but he has trouble finding the words. He stammered often, sometimes relying on his wife, Debbie, to translate. At one point, he gestured toward a pool table and explained — in a belabored, meandering way — that he couldn’t remember what to call the wooden pole resting across it.
“It’s a pool cue, hon,” Debbie said as she gently held his arm.
When the settlement in the landmark NFL class-action concussion litigation was finalized in 2017, and the league agreed to pay sums as high as $5 million to former players diagnosed with brain diseases linked to the sport, Cunningham seemed like a strong candidate for a quick payout. A doctor had first diagnosed him with an early level of dementia in 2015, when he was just 48.
But the firm hired by the NFL and the players’ lawyers to oversee settlement payouts denied Cunningham’s first claim in 2018, citing a series of alleged problems with his diagnosis. His second claim was initially approved for a payment of about $700,000, but then the firm decided to audit his case, demanded more records and took nearly a year to review them before reapproving his payment in May 2020.
When Cunningham’s ordeal finally seemed near an end last June, days before his payment was finalized, the NFL challenged his award. In its appeal, the NFL disputed Cunningham’s diagnosis with an argument that, in part, referenced his race.
The doctor had failed to apply the appropriate “racial corrections,” the league argued, to scores on several tests of Cunningham’s cognitive function — a practice known in neuropsychology as “race-norming.” The doctor had curved some of Cunningham’s scores as if he were White. Had the doctor applied “African-American normative corrections,” the NFL’s lawyer argued, Cunningham would not have qualified for a payment.
In June, the NFL pledged to eliminate race-norming from the settlement payout process, an issue first brought to public attention last August by a lawsuit filed by two former players. Chris Seeger, the lead lawyer for about 20,000 former players, publicly apologized for not acting sooner, and he vowed to fight the NFL to ensure payment for every player whose claim was unfairly reduced, delayed or denied because of race-norming.
In court filings and public statements, both the NFL and Seeger have insisted doctors make the decision on whether to race-norm players’ test scores.
“NFL Defendants do not make the decision as to whether racial normative adjustments are used,” the league’s attorney, Brad Karp, wrote in a court filing in November.
“It was definitely not required. … I don’t know why [doctors] would even think it’s appropriate,” Seeger told ABC in June.
But the NFL and Seeger are responsible for building a settlement claims process that guaranteed race-norming would occur, making it more difficult for some Black former players to qualify for payments, and they failed to act on concerns that the practice was discriminating against Black former players as far back as 2019, a Washington Post investigation has found.
This story is based on a review of thousands of pages of confidential records from 12 players whose families and lawyers believe race-norming affected their cases and on interviews with more than 30 doctors and lawyers with knowledge of the settlement, as well as several independent experts in neuropsychology.
The Post’s findings:
- Experts hired by the NFL and Seeger created a battery of tests and a confidential guidebook for doctors evaluating former players that left doctors with no option other than to use race-based norms. The guidebook directed doctors to use scoring systems that require race-norming scores on several tests. In a memo written this year and reviewed by The Post, one doctor who evaluated players wrote that the guidebook “dictates” the use of race-based norms on several tests.
- BrownGreer, the law firm hired by the NFL and Seeger to oversee settlement payouts, repeatedly issued rulings that reinforced the race-norming practice, including seven denied dementia claims reviewed by The Post in which the firm specifically cited a failure to use the correct race-based norms in the denials.
- As early as May 2019, Seeger and NFL lawyers were made aware race-norming was contributing to denials and that the practice might be discriminating against Black former players. That month, a lawyer representing one player — in a document sent to both NFL lawyers and Seeger — wrote that race-norming violated the civil rights of Black players because the practice makes “it harder for blacks to qualify for the Settlement than whites” and “is discriminatory on its face.” The league and lawyers for the players didn’t agree to remove the practice for another two years.
NFL Commissioner Roger Goodell and Karp, chairman of international law firm Paul, Weiss, declined interview requests. In written statements responding to a list of findings and questions from The Post, Karp insisted the decision to race-norm was ultimately made by doctors on a case-by-case basis. Doctors who think the practice was universally required are wrong, Karp wrote, and doctors had the freedom to score Black players as if they were White. But he also continued to defend the practice of race-norming and disputed claims made by former players, their lawyers, and some members of Congress that the practice is discriminatory.
“Race norms are being removed from the Settlement Program not because they have been found to make it ‘harder’ for Black individuals to qualify for benefits, but because the NFL believes the neuropsychological community can do better,” Karp wrote.
Seeger, who has given two lengthy interviews in recent weeks about race-norming, also declined an interview request. In statements to The Post, he pointed out that some Black former players have qualified for payouts even though their doctors didn’t use Black race-norms. Where the process did affect claims, Seeger maintained doctors are to blame. Separately, he accused the NFL of trying to make race-norming a requirement of the settlement.
“I am sorry for the pain this has caused Black former players and their families. While we had fought back against the NFL’s efforts to mandate the use of ‘race norms,’ we failed to appreciate the frequency in which some neuropsychologists were inappropriately applying these adjustments,” Seeger said. “Ultimately, this settlement only works if former players believe in it, and my goal is to regain their trust and ensure the NFL is fully held to account.”
In interviews with The Post, five doctors who collectively have evaluated hundreds of players in the settlement disputed the contention by the NFL and Seeger that the decision on whether to use race norms was up to them.
“That’s just not true,” said Charles Golden, a neuropsychologist and professor of psychology at Nova Southeastern University in Fort Lauderdale, Fla. “Whenever you didn’t [race-norm], and it made a difference, and the player qualified … they, BrownGreer and the NFL, went after you.” The four other doctors who supported Golden’s assessment spoke on the condition of anonymity, citing confidentiality agreements.
Orran Brown, founding partner of BrownGreer, declined an interview request or to answer any questions, citing the confidentiality requirements of the settlement. In a statement, he also asserted that the settlement “did not require application of the full demographic corrections.”
“We hope this matter is resolved in the near future to the satisfaction of all concerned. When it is, we will apply faithfully and impartially the evaluation criteria we are directed to follow, as we do in every program we administer,” Brown wrote.
Seeger and the NFL have publicly defended the settlement by emphasizing how much money has been awarded: more than $860 million to more than 1,200 former players and their families since 2017. These totals, however, say nothing about the number of denials of claims for the one diagnosis most likely to be affected by race-norming: dementia.
More than 1,000 former NFL players have submitted dementia claims that have been denied, court records show. It’s unknown how many were affected by race-norming, as is the precise racial makeup of the players who are eligible to file claims. But Black players typically comprise 50 to 70 percent of the league’s active rosters in recent years, according to surveys and news reports.
Revelations about race-norming have drawn fierce blowback from players and advocates, some of whom have made comparisons to eugenics and other racist pseudoscience and social science leveraged against minority groups throughout history. The controversy comes at an uncomfortable time for the NFL, which has been working to rehabilitate its public image on race issues after its handling of activist quarterback Colin Kaepernick and amid struggles to improve diversity among its head coach hirings.
“The NFL should be ashamed of itself,” said Cunningham, who is tentatively scheduled to receive his payment this summer, four years after he first applied.
But the response among former players also has highlighted hostility toward Seeger, whose firm, Seeger Weiss, has collected more than $60 million for its role negotiating the settlement and managing the claims process, according to court records. When complaints about race-norming arose last August, Seeger initially said he was aware of no evidence the practice had resulted in claims wrongly denied.
“This isn’t a settlement. Nobody is just getting paid money here. They are literally putting these guys through the wringer,” said Jason Luckasevic, Cunningham’s lawyer, who in 2011 filed the first lawsuits against the NFL, which snowballed into class-action litigation. “To think that just because they’re going to fix the race-norming issue, every former NFL player dealing with brain damage will get a handout? That’s just not going to happen.”
Why norming happens
Race-norming is, in part, rooted in a foundational principle of neuropsychology: Doctors need to consider a patient’s background when determining if that patient is suffering from a brain injury or disease. Normal cognitive test scores for a healthy 85-year-old would register as impaired for a healthy 25-year-old. College graduates typically perform better on many tests of cognition than high school dropouts.
Before deciding if a patient’s test scores are normal or concerning, neuropsychologists usually apply adjustments — or “norms” — to see where those scores rank that patient in a demographically similar population. To do this, they take a raw test score, the actual number of questions a patient got right, and convert it into a “T-score,” which reflects how the person’s performance compares with demographic peers.
Race has commonly been used in those adjustments since the 1990s, after several published papers found some minorities, including African Americans, performed worse on many common tests of cognition than White Americans. Experts who defend race-norming say the practice was intended to prevent doctors from misdiagnosing brain injury or disease in healthy Black people, and to prevent situations such as unnecessary medical treatment or involuntary confinement. It also helps account for biases in the tests themselves, some of which were developed decades ago by mostly White doctors conducting research on mostly middle-class, White populations.
Robert K. Heaton, professor of psychiatry at the University of California San Diego, collected one of the more widely used normative data sets for many common cognitive tests, and his work plays a prominent role in the NFL case. He declined to be interviewed but defended the use of race norms in emails to The Post.
“There are lots of background differences that may explain those differences in test performance” between White and Black people, including stress levels and access to food, health care and education, he wrote. “But these are extremely difficult to measure, quantify and ‘correct for.’ ”
Other experts have expressed concerns about race-norming in medical journals, however, and noted that there are situations — such as litigation — where it puts minorities at a disadvantage from obtaining a benefit. Some normative data is outdated, experts have pointed out, and fails to accurately reflect an increasingly diverse U.S. population.
One of Heaton’s most commonly used data sets, for example, was last updated in 2004 and only collected test results for African Americans and Caucasians. (In an email, Heaton explained that he lacked research funding at the time to collect data for other racial and ethnic groups.)
“I can see where people are coming from who say this was done with good intentions, because there is a history of overdiagnosing, overpathologizing and disenfranchising minorities in this country," said Kristen Dams-O’Connor, neuropsychologist and director of the Brain Injury Research Center of Mount Sinai. But, she said, “race is a terrible proxy for the things that actually matter. It’s a huge oversimplification.”
In regular neurological and neuropsychological care, experts emphasized, a dementia diagnosis would never hinge purely on a few test scores. In the NFL concussion settlement, however, doctors have to follow a rigid score rubric that determines if a player is impaired enough for a dementia claim. The swing of a few points on a few tests can mean the difference between a denied claim and a multimillion-dollar payout.
There is one other major difference between how doctors use race norms in routine medical practice and in the NFL settlement, according to experts and documents reviewed by The Post: In their normal practice, neuropsychologists can choose not to apply any race norms if they believe the normative data for a test is inaccurate, is outdated or doesn’t apply to a particular patient.
“A good clinical evaluation for dementia is not based just on some formula alone, and let’s see where the scores come out,” said Katherine Possin, associate professor of neurology at the University of California San Francisco. “If that’s the way that race norms were applied here, that would put Black players at a systematic disadvantage.”
The legal game
Chronic traumatic encephalopathy, or CTE, was just beginning to become a household term when the first lawsuits were filed in 2011. The NFL had failed to protect players from the harms of concussions, the lawsuits asserted, and concealed evidence about the long-term risks of the sport.
The case became “multidistrict litigation,” or an MDL, in which hundreds or thousands of similar lawsuits are combined into one case. The federal court system sent the case to U.S. District Court in Philadelphia to be overseen by Judge Anita Brody.
When settlement talks began, two lawyers led negotiations: Karp for the NFL and Seeger for thousands of former players.
For the NFL, Karp was a natural choice. He had successfully navigated several high-profile legal threats for corporate clients, including Smith Barney, a Wall Street firm accused in the 1990s by dozens of female former employees of fostering a culture of sexual harassment, and Citigroup, accused in the 2000s of helping energy firm Enron deceive investors.
To represent the players, Seeger seemed a less obvious selection. While several attorneys had amassed hundreds of former NFL players as clients, Seeger represented only about 20.
But what Seeger lacked in clients he made up for in experience in MDLs. After several substantial victories in jury trials against pharmaceutical companies in the early 2000s, Seeger developed a specialty representing entire classes of plaintiffs in MDLs. That caught the attention of Brody, who cited Seeger’s experience when she appointed him to represent all of the former players in 2012.
Seeger technically served as co-lead counsel representing the players, along with Sol Weiss, a partner at Philadelphia personal injury firm Anapol Weiss. But at a legal conference in 2018, Karp said Seeger quickly asserted himself as “the key plaintiff’s counsel, the lead counsel.”
Weiss declined an interview request. “Try Chris Seeger,” he wrote in an email.
The settlement took effect in January 2017. In it, the NFL agreed to pay amounts ranging from $25,000 to $5 million, depending largely on age and length of NFL career, to any former player diagnosed with one of five conditions: ALS, Parkinson’s, Alzheimer’s, dementia and “Death with CTE.”
Seeger’s outsize role in crafting the settlement quickly drew criticism. In 2018, more than 20 lawyers and firms that collectively represented thousands of former players filed motions asking Brody to appoint another lawyer to serve as class counsel along with Seeger. In court filings, the lawyers accused the NFL of rigging the claims process in its favor, and they accused Seeger of not advocating forcefully enough for former players. Brody denied their motions.
Among the lawyers’ criticisms: The settlement was failing to adequately compensate players dealing with dementia and CTE.
To cover players living with CTE — which cannot be conclusively diagnosed until death — experts working for the NFL and Seeger had created two dementia-related diagnoses: Level 1.5 neurocognitive impairment (early dementia) and Level 2 neurocognitive impairment (moderate dementia). To qualify, players needed to provide evidence including cognitive test scores showing their brain function had declined. Working with experts, Karp and Seeger had negotiated a battery of 23 cognitive tests.
“State of the art,” Seeger said of the test battery at a June 2017 meeting in Miami with former NFL players. “It’s the best of the best.”
At that meeting, Seeger introduced the man he had selected to act as a referee of sorts: Orran Brown, whose Richmond-based law firm, BrownGreer, specializes in overseeing the payouts of settlements in complex litigation.
“Orran Brown and I have worked together on other cases. ... He is the best of the best also,” Seeger said. Recently, the two had worked together on a $4.85 billion settlement with Merck over its pain reliever Vioxx, suspected of causing strokes and heart attacks in thousands of patients.
Working with review doctors selected by the NFL and Seeger, Brown explained, his firm would review every claim and determine if it merited payout. The NFL, Seeger and lawyers for individual players had the right to appeal to special masters — essentially arbitrators appointed by Brody — who would rule on disputes over whether players qualified.
The night he was introduced to former players, Brown tried to dispel any concerns that he and his employees would favor the NFL, which paid the firm’s bills.
“We work for the people who deserve to get benefits from this program. … We do not take orders from the NFL; we do not take orders from class counsel. This settlement agreement is our playbook,” Brown said as he picked up a hefty binder from a nearby chair.
A rigid process for doctors
Nowhere in the 161-page settlement agreement Brown waved in the air that night does it state that doctors must race-norm. But there was another confidential document that contained more direct language.
Entitled “Neuropsychologist Handbook (the Clinician’s Interpretation Guide),” the 19-page document, reviewed by The Post, offered precise instructions to doctors about how to score the tests players needed to take as part of the settlement. The document was created in early 2017, according to a court filing, by experts retained by the NFL, Seeger and Epiq, a legal services company involved in the settlement.
An Epiq spokeswoman declined to comment. Two of the experts involved are identified in court filings: Scott Millis, a neuropsychologist and professor at Wayne State University medical school who was retained by the NFL, and John Keilp, a neuropsychologist and associate professor at Columbia University medical school, retained by Seeger. Both declined interview requests.
The guidebook informed doctors they could choose from one of two scoring systems to curve former players’ cognitive test scores: ACS software (short for Advanced Clinical Solutions) or Revised Comprehensive Norms, also referred to as “Heaton norms,” because the system draws from data collected by Heaton, the UC San Diego researcher and defender of race-norming.
The ACS software allows doctors to curve scores without race-norming, according to experts. The Heaton norms, however, do not, according to experts — including Heaton himself. “That is correct,” Heaton wrote in an email to The Post when asked if software based on his data required users to race-norm.
Of the 23 cognitive tests in the NFL concussion test battery, the ACS software works for 17. For the six remaining tests, according to the guidebook, doctors must use the Heaton norms.
In February, one neuropsychologist who has evaluated players wrote a memo, attached to an appeal of a denied dementia claim reviewed by The Post, that explained how the guidebook forced him to race-norm. The doctor had diagnosed a 39-year-old Black former NFL player with early dementia, but BrownGreer denied the claim, citing test scores that were too high. In the memo, the doctor explained that if he had applied White norms, the player’s scores would have fallen into the approved range.
In his normal practice, the doctor explained, he used Black norms for some tests “but never without consideration for the possible biases inherent in such norms.”
“However, the NFL Concussion Settlement Clinician’s Interpretation Guide … dictates the use of such norms,” the doctor wrote.
To demonstrate the system’s rigidity, another doctor agreed to allow a reporter observe him using the software based on Heaton’s norms. When the doctor tried to move forward without selecting a race or ethnicity, the software stopped him.
“Ethnicity must be specified,” a message on the screen read.
In his letter to The Post, Karp, the NFL’s lawyer, asserted that doctors have the discretion to choose to apply White Heaton norms to the scores of Black former players if they feel those norms better represent the player’s background. In court filings, experts involved with writing the guidebook supported this argument.
“Though ‘Heaton Norms’ are divided by race initially, Caucasian norms may be used, in certain circumstances, for African-Americans based on clinical judgment,” wrote Keilp, the expert retained by Seeger. An expert hired by the NFL argued the same.
But nowhere in the guidebook does it state this. When asked if he was aware of any written guidance to doctors informing them of this discretion, Karp pointed to an August 2020 ruling by two special masters who concluded race-norming is not required in the settlement. That ruling, however, also noted the guidebook is “unclear whether the clinician can exercise discretion in deciding whether to apply the White or African American norms.”
In that case, a doctor had applied the White norms to a Black former player, and BrownGreer had approved a payout. The NFL challenged the diagnosis in part, court records show, over the doctor’s failure to use the Black norms.
‘Notice of denial’
Beyond the guidebook, there’s another reason some doctors thought applying Heaton’s race-based norms to all Black players was required, documents show: BrownGreer repeatedly denied dementia claims when they didn’t.
The Post reviewed seven dementia claims between 2018 and 2020 in which doctors curved Black players’ scores using Heaton’s White norms or tried to use other scoring systems not mentioned in the approved guidebook. Families of the players involved agreed to share claim records with a reporter on the condition the players not be revealed.
In each case, BrownGreer overruled the dementia diagnosis and denied the claim for reasons including a failure to use the correct race norms.
Orran Brown declined to answer questions about specific cases. In his statement, he did not dispute that his firm had repeatedly denied claims, in part, for a failure to use Heaton’s race-based norms. In the denials reviewed by The Post, the failure to use the correct race norms was never the firm’s only dispute with the diagnosis.
The first denial, from September 2018, involved a former player diagnosed with early dementia. The player had a failing memory, needed help getting dressed and required reminders to shower, brush his teeth and use deodorant, according to documents filed as part of his claim.
“Incorrect norms were used and when the results are appropriately corrected using Heaton norms, there is no longer any impairment,” BrownGreer’s denial stated.
In another, from later in 2018, BrownGreer denied the dementia claim of a player whose symptoms, according to claim documents, included forgetting loved ones’ names, frequently getting lost driving home and occasionally losing control of his bladder, wetting himself.
“Inadequate norms when calculating scores,” read BrownGreer’s denial. “There was a significant difference in the T-scores when the correct Heaton norms were applied.”
As late as March, Seeger maintained in public statements that he was unaware of any racial bias in the settlement program. But his firm is copied on every denial by BrownGreer; reviewing them is one of the firm’s duties as class counsel. The firm is also tasked with reviewing every appeal filed by a lawyer for an individual player. In an appeal filed in May 2019, an attorney representing one former player made explosive claims about the potential impact of race-norming.
“Heaton and other race-based norms are problematic as they make it harder for blacks to qualify for the Settlement than whites,” attorney Justin Wyatt wrote in the appeal, which was reviewed by The Post. “The use of Heaton’s race-based norms is discriminatory on its face. By definition, Heaton’s race-based norms have the effect of treating blacks differently than whites.”
Months later, Seeger filed a motion supporting that player’s appeal that did not address Wyatt’s broader allegations. The player ultimately received a payout, court records show, but Seeger took no further action to investigate whether race-norming was systematically affecting claims, he has acknowledged.
BrownGreer didn’t deny every dementia claim in which a doctor chose not to apply Black race norms. But when it didn’t, the NFL sometimes appealed.
The dementia claim of Najeh Davenport, one of the retirees who sued the league last year, was initially approved by BrownGreer, according to the suit. But the NFL appealed, arguing that BrownGreer had mistakenly approved a claim despite problems with the diagnosis — including a failure to apply the correct race-based norms.
After the appeal, BrownGreer contacted Charles Golden, the Florida neuropsychologist who had evaluated Davenport, according to court records, and asked him why he didn’t use Black norms.
“Using different racial standards is indeed discriminatory and illegal,” Golden replied. “We stand by our scores and will gladly defend them in any legal proceeding.”
The special master sent the claim back to BrownGreer to collect more information from Golden about why he chose White norms to curve Davenport’s scores. It’s unclear from public court records if the case has reached an outcome. Davenport’s attorneys declined to comment.
In a phone interview, Golden said while he understands BrownGreer is supposed to act neutrally and impartially, that does not match his personal experience of interactions with the firm’s representatives.
“When they say they’re not representing the NFL, that’s hard for me to believe,” Golden said. “The players certainly believe that. They think this whole system is rigged.”
Outrage with the system
Race shaped much of the upbringing of Rick Cunningham, who was one of the few Black children in his Beverly Hills neighborhood in the late 1970s and early 1980s. As a child, he learned to code-switch when playing with White friends. When he was 14, he said, police officers knocked him off his skateboard, threw him to the ground and searched him because they mistakenly thought he had robbed the nearby home of an actress.
That was also the year his mother finally relented and let Cunningham play football. A standout high school career eventually led to a scholarship at Texas A&M. In the 1990 NFL draft, the Indianapolis Colts took him in the fourth round.
Cunningham played in 80 games over eight seasons, attaining the most success with the Phoenix/Arizona Cardinals, with whom he started at right tackle in 1993 and 1994. His career highlights, he said, included playing with his childhood hero, Eric Dickerson, in Indianapolis and scoring his only career touchdown, for the Oakland Raiders in 1996 — the day before one of his sons was born.
Memory problems started late in his career, he told his doctor, when he noticed his ability to learn a new playbook had faltered and he started missing blocking assignments. After retiring from football, he worked briefly as a loan officer before memory and thinking difficulties became too much.
“It just progressed. I can’t remember a specific time to when I started needing to finish sentences for him,” said Debbie Cunningham, his wife of 14 years, with whom he shares six children and five grandchildren.
When the settlement payout process opened in 2017, Cunningham was among the first wave of early dementia claims. To support his case, he cited diagnoses he had received in 2015 and 2016, when a neuropsychologist noted he had “dysfluency in his speech . . . difficulty finding words and expressing himself.” Tests also showed a “moderate to severe decline” in his cognitive function.
BrownGreer denied his first claim the next year. In a one-page explanation, the firm did not explicitly identify race norms as a reason for the denial but stated that a review doctor concluded Cunningham’s test scores didn’t support the diagnosis.
Cunningham filed a new claim in November 2018 using the same neuropsychologist, and in May 2019 BrownGreer approved him for a $700,000 payout. A month later, however, BrownGreer placed the claim into a routine audit. It would need more records, it said, including several years’ worth of tax returns and answers to detailed questionnaires about all activities Cunningham did outside the home, including volunteering, exercising and every social engagement he recently attended.
In May 2020, BrownGreer re-approved Cunningham’s payout. But the NFL challenged his award, arguing in its appeal that the league had “clear and convincing evidence” that Cunningham’s test scores didn’t support his diagnosis.
In the appeal, Karp wrote that an NFL review had concluded the neuropsychologist had applied Black norms to some of Cunningham’s test scores but White norms to others. The appeal included a chart that showed how, if the doctor had used the Black norms for every test, Cunningham’s scores would have been too high to meet the settlement’s definition for early dementia.
That wasn’t the only issue the NFL raised. The league’s attorneys identified several photos of Cunningham on social media that they said showed he was not as impaired as he claimed. In support of its appeal, the NFL attached photos of Cunningham on Facebook and Twitter doing activities including attending a Cardinals game, celebrating his son’s graduation from medical school at a bar, and volunteering at a homeless shelter on Thanksgiving. Karp told The Post that reviewing former players’ social media is a tool for rooting out fraudulent claims.
Cunningham’s outrage about the NFL scouring his social media activity almost exceeds his fury about the league’s use of his race in seeking his denial. His doctors advised him to get out of the house more, he said, because it’s beneficial for his cognitive health.
“I’m not going to like, try to, like, not, not function … just wait, you know like wait, wait to die,” he said.
In response to the NFL’s appeal, a special master directed BrownGreer to ask Cunningham’s doctor why he applied both Black and White race norms. In his reply, neuropsychologist Marc Walter explained that he felt the Black normative data from the ACS scoring system was more recent and relevant, so he used it. For the tests that require Heaton race-norms, however, he had concerns.
“Based on my clinical experience in evaluating hundreds of individuals … it is my impression that the Heaton algorithm frequently tends to underestimate the baseline performance of African American individuals,” Walter wrote.
In February, BrownGreer informed Cunningham that it had reversed its decision and denied his claim. It didn’t cite race norms. But BrownGreer had agreed with other complaints the NFL had raised, including that the neuropsychologist shouldn’t have given Cunningham credit for all four years of college when curving his scores because he had actually left Texas A&M a few credits shy of graduating.
Facing again the possibility of not getting a payout after years of legal fights, Cunningham’s lawyer Luckasevic appealed BrownGreer’s reversal to the case’s special master. The firm had “maliciously violated” the rules of the settlement, Luckasevic wrote, by taking a specific request — to ask the doctor about his use of race norms — as an opportunity to review the entire case file.
On May 10, Special Master David A. Hoffman agreed and restored Cunningham’s reward.
“He did nothing wrong other than submit a claim," Luckasevic said, “and they tried to find every possible reason to deny it.”
In statements to The Post, Karp argued the NFL didn’t appeal Cunningham’s case because the league thought the doctor should use Black norms on all Cunningham’s test scores. Instead, he said, the NFL just needed an explanation from the neuropsychologist about why he chose to use both Black and White norms. In the NFL’s appeal, however, Karp termed the doctor’s decision to curve some tests as if Cunningham were White “unreasonable” and asserted “there is no clinically justifiable explanation for the inconsistency in approach.”
For months after the race-norming lawsuit was filed last August, Seeger, in court filings and statements, agreed with the NFL that no discrimination had occurred in the settlement.
“The use of these norms has always been left to the clinical judgment of the neuropsychologist and was never mandated by the settlement,” Seeger said in a statement in March. “As we have investigated this issue, we have not seen any evidence of racial bias in the settlement program.”
Judge Brody, however, expressed concern about the practice in a court filing in March. She dismissed the lawsuit filed by former players but made the unusual decision to send the NFL and Seeger back into mediation, more than four years after the case was settled, to negotiate the removal of race-norming from the evaluation of claims. The mediation is ongoing and also involves the lawyers for Davenport and Kevin Henry, the former players who sued over the practice.
A solution will be difficult and potentially costly for the NFL. Simply awarding a payout several years late to a former player — or the family of a deceased former player — is likely to draw arguments from attorneys that the NFL should pay damages as well, experts said.
“It’s the right move, but it won’t erase what’s transpired,” said Nora Freeman Engstrom, a professor at Stanford law school and an expert in legal ethics. While public outrage over revelations about race-norming largely has been targeted at the NFL, Engstrom said, the situation also raises difficult questions for Seeger.
“One of two things is true,” Engstrom said. “Class Counsel either didn’t know how compensation decisions would be made, or alternatively, Class Counsel did know but chose to overlook the fact that certain class members would be seriously disadvantaged on account of their race. Neither of these possibilities puts counsel in a particularly positive light.”
When Cunningham was a child, before his parents let him play football, he briefly dreamed of being a doctor. Still, he has no regrets about how his life turned out. Many of his best friends are former teammates and opponents. He draws a distinction between the game he loves and the corporation that profits from it.
One question recurs in his mind, he said, when he thinks about his years-long struggle to get paid for damage playing in the NFL inflicted on his brain and how some of his White former teammates had their claims approved and paid, they told him, in a matter of weeks.
“Why me? You know, I don’t feel like I’m different than anybody else,” Cunningham said. “Except for the color of my skin.”