The 46-page agreement appeared to have been posted to the online docket for U.S. District Court in Philadelphia by mistake; it had been scheduled to be filed under seal until it had been reviewed by a judge. Hours after it was posted, it was removed. The agreement is also expected to undergo a public hearing before final approval.
The proposed agreement also has the support of Kevin Henry and Najeh Davenport — the former NFL players who first brought public attention to the use of race-norming in the settlement last year with a lawsuit alleging the practice discriminated against Black players — as well as their attorneys. As part of the settlement, Henry and Davenport agreed to drop appeals of their lawsuit, which had been dismissed, and released the NFL from any future legal exposure over the use of race-norming in the settlement.
“We believe that this is a huge win for Black retired players and look forward to discussing it more fully once permitted,” attorney Cy Smith of Zuckerman Spaeder law firm, which represents Henry and Davenport, said in a statement late Wednesday.
Under the terms, reached after months of negotiation involving several experts in neuropsychology, the cognitive test battery former NFL players must take as part of the settlement will be modified for the next year through several short-term changes intended to make score-curving systems for tests race-neutral. Former players who already have gone through the settlement’s evaluation process will have their test results rescored according to these changes to determine whether they should have qualified for payouts for diagnoses of dementia or other diseases.
Over the course of the next year, the agreement states, experts retained by the NFL and players’ lawyers will develop a long-term replacement system for race-norming by studying cognitive test results of thousands of former NFL players and crafting a new system to curve cognitive test scores designed specifically for NFL players.
In neuropsychology, cognitive test scores are commonly curved using normative data — or “norms” — intended to correct for demographic factors that can affect a patient’s performance, such as age or education. The use of race in score-curving, also known as race-norming, dates from the late 1990s, after published research found many Black Americans performed worse on common tests of cognition than White Americans and risked misdiagnosis for dementia or other diseases.
In regular clinical care, race-norming is an optional tool for doctors and has become increasingly controversial in recent years. Some experts have raised concerns that race-based data in common test-curving software is outdated or unreliable.
In news reports since the issue of race-norming was first brought to light last year, several doctors who have evaluated players in the NFL concussion settlement asserted they were essentially forced to race-norm players’ scores, either by the law firm that oversees the evaluation of claims or by the NFL, which can appeal player claims. The NFL has insisted race-norming did not discriminate against Black former players.
“We look forward to the Court’s prompt approval of the agreement, which provides for a race-neutral evaluation process that will ensure diagnostic accuracy and fairness in the Concussion Settlement,” said Brad Karp, the NFL’s lead attorney on the concussion settlement.
Attorney Chris Seeger, the lead lawyer for more than 20,000 former players in the settlement, also drew criticism over race-norming from former players and their attorneys. Until earlier this year, Seeger maintained the practice did not discriminate against Black players. In June, he reversed course and issued a public apology.
“These changes accomplish what we promised: to eliminate the consideration of race in all the settlement’s diagnostic testing and provide Black former players retesting or rescoring of claims,” Seeger said in a statement. “We look forward to presenting details of these changes to the Court, and engaging with former players about how this agreement will further the goal of providing them the care and support they deserve.”