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Episode 34: Race Norming in the NFL Class Action Brain Injury Lawsuit

In this episode of Brain Injury Insider, host Michael Kaplen discusses "Race norming" - a biased, and flawed methodology which continues to deny many players involved in the NFL class action brain injury lawsuit the compensation they are entitled to.

The settlement terms of the NFL ClassAction Brain Injury Lawsuit, continue to plague and prevent retired NFL players eligible from receiving the compensation they are entitled to.

The latest twist on the settlement, and further proof this settlement was not entered into with the best interest of all the players, is the revelation that the settlement administrator is using something known as "race norming" to adjust the scoring of players at neuropsychological assessments for dementia to determine if they are eligible for compensation.

Both sides,the NFL and the attorneys supposedly representing all players,originally agreed to this race norming, which inherently presumes a lower cognitive baseline for black individuals in general, and black players specifically. This comparison implicitly assumes that black individuals in our population have a higher or different level of dementia than other races. It fails to account for the inherent bias in this assumption, and fails to account for age, education, education opportunities, accessto health care and other health issues.

This translates into the racially discriminatory assumption that black players have lower cognitive abilities than their white counterparts, making it more difficult to obtain benefits when comparing a player's current condition to the presumed norm.

Only black players must be subject to this tortured comparison.

The bottom line is this comparison is racist, plain and simple.

Why the attorneys for the players ever agreed to this racistgrading scale is beyond me.

So how has all this played out in the awarding of settlement funds to black players who make up the majority of all players in the National Football League?

You guessed it, a greater proportion of black players are being denied compensation. And if these players were not subject to this race norm comparison, then they would obtain compensation under this agreement.

The attorneys for the players now have had a change in heart after this scoring was revealed by independent attorneys for some players who were denied compensation based on these norms.

And all sides, the National Football League, and the attorneys for the Class Action players have been ordered by the district court to proceed to mediation to deal with these issues.

Both sides now have agreed not to use this racist criteria in future assessments, but the issue remains unresolved regarding what to do with players who have been denied compensation already using this standard.

Why there has been no agreement on re-evaluating these players based on the same criteria used by the administrator in looking at white players is the question that still needs to be addressed.

And in the most recent development this week, the district court has imposed a gag order on all sides participating in this mediation to resolve racial issues.

But why has it taken the attorneys with a fiduciary obligation so long to admit they didn't know what they were doing?

Why did the NFL and its advisers include this norm in the first place?

Why did the attorneys for the players ever agree to this?

These are important questions, and ones that need to be addressed by the court, and the court of public opinion.

And as my partner Shana De Caro and I pointed out in our authorship of the amicus brief on behalf of the Brain Injury Association of America, originally challenging this settlement in the Third Circuit Court of Appeals, and again in the United States Supreme Court, this is just one of the inherent problems with the settlement, and the denial of benefits to the majority of players who should be entitled to benefits.

As we wrote then and as I repeat now, the settlement neither recognizes nor compensates the majority of players suffering long term consequences of brain trauma, but merely rewards certain small, discrete groups.

The vast majority of retired players experiencing physical, emotional, and behavioral impairments following repetitive concussions remain excluded and uncompensated under the terms of the settlement.

Unfortunately, the attorneys who entered into this settlement on behalf of the players, they didn't know what they were doing then, and still do not know what they are doing now.

As Public Citizen, the influential public interest group wrote in also challenging the original settlement, these attorneys were conflicted, and should never have been allowed to speak for the majority of players.

The same holds true now, and it's time that the court appoint new attorneys who are concerned with looking out for the best interest of all players affected by the settlement.

And it's also time that the entire settlement be re-examined, and be reformed to allow all players suffering from the devastating effects of repetitive concussions to participate in the settlement.

Nothing is ever settled until it is settled right.

Audio version

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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.