PHILADELPHIA -- - The federal judge presiding over the NFL's $1 billion settlement of brain injury claims on Thursday invited lawyers for Black players who call the settlement discriminatory to join court-led mediation over the issue.
The lawyers have challenged the settlement's use of "race-norming" in dementia testing since 2018. The practice assumes Black players start with lower cognitive skills and makes it harder for them to show injury and get awards from the settlement fund.
The judge's order comes a day after the NFL issued a public pledge to abandon the practice and review the scores of retired players who believe the race-based adjustments deprived them of dementia settlements that average $500,000 or more. News coverage of the NFL's turnabout drew a degree of outrage online from people angry the league ever sanctioned race-norming in the first place.
In some cases, the NFL insisted on it, appealing awards if doctors did not adjust the scores for race under the binary Black and non-Black scoring system developed in medicine in the early 1990s.
"It's insulting, very insulting, for that to even be going on," Detroit Lions assistant head coach Duce Staley, a former NFL running back, said on a Zoom call Thursday with reporters. "Now, the NFL is correcting themselves."
Former Steelers Kevin Henry and Najeh Davenport, in a civil rights lawsuit filed last year, said they were denied awards but would have qualified had they been white. Senior U.S. District Judge Anita B. Brody dismissed the suit in March on procedural grounds. But with calls for racial justice intensifying in the U.S., and as she marks 10 years overseeing the NFL concussion case, the 86-year-old judge has issued two later orders suggesting the practice troubles her.
First, she ordered the NFL and the lead players lawyer to mediate the race-norming issue -- with help from a diverse panel of medical experts. Now she's seating the lawyers for the Black players at their negotiating table.
"As the court learned from the media, the NFL has committed to eliminating racial norms from the settlement and replacing them with a new set of norms that 'will be applied prospectively and retrospectively,'" Brody wrote in Thursday's order. She said the lawyers for Henry and Davenport "have presented research on the appropriate use of norms, and they may have information that would be useful to the mediation."
Those lawyers did not have any immediate comment on the judge's order. They had asked for the right to intervene several months ago. Christopher Seeger, whom Brody had named class counsel in the case, opposed their motion to intervene in March and said he saw no evidence of any race bias in the administration of the fund. On Wednesday, he apologized, saying he now saw the problem more clearly and hoped to regain the trust of Black players.
The NFL, in its statement Wednesday, noted that the race norms were developed in neuropsychology for benevolent reasons, "to stop bias in testing, not perpetrate it." But critics call them outdated and say they were never meant to be used to assess legal damages.
The 2013 settlement ended thousands of lawsuits that accused the NFL of long hiding what it knew about the link between concussions and traumatic brain injury.