PHILADELPHIA (AP) — Retired black soccer players who were denied payments for dementia in the NFL’s $1 billion concussion settlement may have their claims retested or reevaluated under a revised plan completed Friday apply to eliminate racial bias in the testing and payout formula.
Outrage over the use of “race-norming” in dementia testing — which assumed blacks have a lower baseline cognitive score, making it harder for them to show mental declines associated with football — forced the NFL and players’ attorneys to backtrack negotiating table last year.
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The revisions could allow many retired players to resubmit their claims and add $100 million or more to the NFL’s legal department. The NFL has paid out more than $800 million through the fund so far, nearly half for dementia claims. Dementia prices average around $600,000.
“Thousands of black players will benefit from these settlement changes,” said attorney Cyril V. Smith, representing former players Najeh Davenport and Kevin Henry, whose 2020 racial discrimination lawsuit exposed the issue.
Senior US District Judge Anita B. Brody in Philadelphia, who has overseen the NFL concussion case for a decade, dismissed her lawsuit but urged the parties to address the issue. She approved the negotiated changes in an order filed on Friday.
More than 3,300 former players or their families have applied for an award for brain injuries linked to their playing time, more than 2,000 of them for moderate to advanced dementia.
The dementia cases have proven to be the most controversial, with only 3 out of 10 claims paid to date. Another third were denied, and the rest remain in limbo as the claim often goes through multiple levels of scrutiny by the claims administrator, medical and legal advisers, trial investigators and judges.
In a recent ruling showing the difficulties families have faced in dealing with the claims process, the evaluator lamented the lengthy delays experienced by the widow of a former player who developed advanced CTE or chronic traumatic disease following his death in 2019 encephalopathy was detected.
His medical records show “progressive cognitive decline and irrefutable evidence that he had CTE at the time of his death,” reviewer David Hoffman wrote.
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“But these diagnoses and the supporting medical records do not fit within the prescribed fields of the settlement for the claimed qualifying diagnosis (dementia),” said Hoffman, a contract law expert at the University of Pennsylvania Law School.
The player, a black man who was 57 at the time of his death, also had his scores normalized to account for his race, age, education and other factors according to protocols in use at the time. According to Hoffman, his claim would not qualify for an award even if his tests were re-evaluated under the new race-blind formula.
The vast majority of the league’s players — 70% of active players and more than 60% of living retirees — are black. So the changes are expected to be significant and potentially costly for the NFL.
The agreement to end racial normalization follows months of closed negotiations between NFL attorneys, the class attorney for the nearly 20,000 retired players, and Smith and other representatives from Davenport and Henry.
Ken Jenkins and his wife Amy Lewis have also campaigned for the changes, collecting thousands of petitions and urging the Justice Department’s Civil Rights Division to investigate the alleged discrimination.
The binary scoring system used in dementia testing—one for blacks, one for everyone else—was developed by neurologists in the 1990s as a crude way to account for a patient’s socioeconomic background. Experts say it was never intended to determine payouts in a court settlement.
However, it was accepted by both sides in the 2015 settlement that settled lawsuits accusing the NFL of hiding its knowledge of the risk of repeated concussions.
The 65-year settlement also grants financial rewards to former players with Alzheimer’s disease, Parkinson’s disease and amyotrophic lateral sclerosis. It does not cover CTE – which some call football’s signature disease – except for men who were posthumously diagnosed with it before April 2015, a deadline set to avoid inciting suicide.
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