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Episode 65: NFL 'Race-Norming' Update

The NFL class action brain injury case continues to make news.

The original settlement provided a limited category of neuro-degenerative diseases which would qualify retired players for compensation.  The categories for compensation are Dementia, Parkinson’s disease, Lou Gehrig’s disease and deaths before April 2015 involving CTE, or chronic traumatic encephalopathy.

To qualify under the dementia category, a player would need to be tested through neuropsychological testing to determine if he met the settlement’s newly created definition of dementia.  Putting aside the definition issue, which still is major problem with the settlement terms, two years ago, it was discovered that the testing had a built-in racial bias against black players. 

The dementia tests were being “race-normed” — adjusted due to assumptions that Black players have a lower cognitive baseline score.  Several players challenged the racial bias and inherently biased assumptions in a lawsuit.

Because of this lawsuit and intervention by the Federal Court overseeing the settlement, 646 players whose medical tests were rescored to eliminate race bias will now qualify for awards.

But many more players have been denied compensation based upon these biased tests that assume that a black individual has a lower cognitive ability then a white individual.  Many former players don’t know they can be rescored or retested, especially if they have cognitive issues and live alone.

Yes, you heard it correctly, the assumption is outrageous. Black players received less money, and sometimes, none, under the settlement because they were assumed to start off with a lower level of cognitive ability than white players and thus suffered less cognitive decline because of football. How the NFL slipped this into the original testing protocol, and why the players class action attorney never discovered it or allowed it to take place, is ripe for investigation by the Civil Rights Division of the United States Department of Justice. 

The investigation still needs to be conducted even with the testing bias eliminated.

Let me repeat this again, a federal investigation still needs to be conducted to determine how and why this racial bias was made part of this settlement.

The settlement terms still need to be modified to correct other inequities. 

Although the class action attorneys tout the benefits of the settlement, the majority of players who suffer the long term cognitive, behavioral, and emotional consequences of repetitive head trauma still remain uncompensated.

My partner Shana De Caro and I filed opposition to the settlement on behalf of the Brain Injury Association of America.  Our amicus brief to the United States Supreme Court can be found on our web site:

Because no discovery was conducted before the settlement, what the NFL knew, when they knew it, and what they did with the information is still secret.

Until this information is revealed and an investigation is conducted, the public is left in the dark and the league can hide from the truth.

Thanks for joining me, and I look forward to meeting with you again next week, on a new edition of The Brain Injury Insider.

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Brain Injury Insider

michael kaplen
Brain Injury Insider is a weekly video update by The Brain Injury Law Firm ®. We cover the latest news and developments in traumatic brain injury, concussion, and brain injury law.