Two retired NFL players, who have filed dementia-related claims in the NFL Consent Settlement, and accused the league of discriminating against Black players, want their own representatives Participate in a mediation aimed at addressing the use of race-based benchmarks Determining eligibility for payment.
Kevin Henry and Nazeh Davenport argued in a lawsuit that different scoring curves – one for black athletes, the other for white players – are used by neuropsychologists to evaluate dementia-related claims “explicitly And deliberately “discriminating against hundreds if not hundreds of black players.” But last week, Judge Anita B. Brody of the Eastern District of Pennsylvania dismissed her suit and ordered an arbitrator to address her concerns about the practice.
The players are seeking a new representative because they said that Christopher Seeger, a lawyer for more than 20,000 former players in the class action settlement, was aware of the misuse of the race-based benchmark in early 2018 and did not address the issue.
Counsel for Henry and Davenport wrote in their request, “It is not realistic to expect that concern about race-norms will be effectively addressed by parties who do not see the current use of race-norms as a problem.” Huh.”
Players say Black former players may have denied their claims because the benchmarks used to assess the rate of cognitive decline intentionally make it harder for them to receive payments for hundreds of thousands of dollars, a phone interview on Tuesday I denied the allegations. the new York Times.
Seeger said that he was aware of some objections to race-norms over the years. He stated that he interfered in at least one case and the player received a $ 1.5 million payment as a result. However, “there has not been a systematic attempt to mistreat black players in the colony,” he said.
However, to clear up any ambiguity, Caesar stated that he would fight for the race-norm completely stripped from the colony.
“Players need to believe in me, I need them to believe in the settlement and I believe they need to behave appropriately,” he said.
Doubt remains. As a representative of all 20,000 players at the settlement, Seger signed on to use the race-based benchmark in 2014, when the settlement was being approved. The NFL and Caesar noted that the use of race criteria is not mandatory, although Seeger acknowledged that some doctors have accused players of evaluating that it may be under the misconception.
The New York Times reviewed the confidential records of eight Black former players, whose claims of dementia were denied. In cases, which date to 2018, diagnoses made in relation to the race showed a significant decline in function for players to be eligible for payment.
But a second doctor retracted those diagnoses because the early doctors gave Drs. Did not use race norms developed by Robert Heaton which have been the standard in settlement claims.
“NFL guidelines are too specific to require the use of Heaton criteria for multiple tests,” wrote an appeals physician denying dementia diagnosis for a player whose career spanned the 1990s and 2000s. To illustrate this point, the doctor listed the player’s test scores after applying a race-based benchmark to show that “there was no evidence of significant cognitive decline.”
Lawyers representing dozens of former black players said that black players with similar test scores were disqualified after using the racial norm, which is a violation of their civil rights.
“Unlike many civil rights cases, Heaton’s use of race-based norms is discriminatory on its face,” Justin Wyatt, an attorney for more than 100 players, wrote in a confidential filing in 2019 that one of his clients had dementia He was reversed after diagnosis. . “By definition, Heaton’s race-based criteria have the effect of treating blacks more than whites.”
It is unclear how many black players were falsely implicated or their diagnosis overturned. Henry and Davenport’s lawyer Cyril Smith claimed that white players were getting their dementia claims approved at two to three times the rate of black players.
But Smith was unable to substantiate his claim because, he said, Caesar and the NFL have not shared any data on the approval rates of dementia claims by white and black players.
Caesar said this week that he would release that data once his investigation into the use of the racial norm in the settlement was completed in the coming weeks, and claimed that any “unreasonably affected by race-norming” The claim will be reviewed.
Smith and Wyatt said that the only way to ensure that the claims of black players are not misguided is to save every single neuropsychological examination of them without the use of racial examinations. Over 7,000 former players took Free neuropsychological and neurological examination Introduced in the township. Some of them were told that they do not have dementia and may be unaware of how they were tested.
It is unclear whether the NFL would approve every player to resume the exam because the payout results could potentially be hundreds of thousands of dollars each. More than $ 800 million in claims have already been approved for a range of neurological and cognitive diseases, and Seeger expects the amount to be $ 1 billion.
The NFL said in a statement, citing the use of demographic adjustment as a common adjustment in such examinations, “that there is no merit to the discrimination claim”. It argued that the number of players potentially impacted by the use of race-based benchmarks, which is attributed to, among other reasons, “a number of claims that have been denied for reasons such as criteria and There is nothing to do with any defense. Those denials have no effect. “
The league said: “The NFL is nonetheless committed to helping find alternative testing techniques that will lead to diagnostic accuracy without relying on breed-based criteria.”
To assess cases of dementia, doctors must estimate what a person’s cognitive skills were years ago and compare them to the patient’s current condition. In theory, race-criteria are designed to help doctors cognitive skills of black and white people in the past.
But using race to estimate one’s cognition is difficult because it does not account for factors such as a person’s health, education, or economic background. Many people – such as those who come from fraternity families – do not neatly fit into the same racial category. NFL players are also a unique group because almost all of them have attended at least three years of varsity. Experts said comparing large pools of white and black Americans can be misleading.
“Among the scientific community, it is now widely recognized that race / ethnicity represents a crude proxy for lifelong social experiences, and biologically based racial differences in IQ have been rejected,” Dr. Catherine Poussin of the Center for Memory and Aging at the University of California San Francisco wrote in the journal JAMA Neurology In December. “Even with the best criteria, the diagnosis of cognitive disorders should not be decided based on the plug-and-play formula of cognitive test scores.”
The debate over the use of race criteria is not unique to NFL tackle. In the past, their use has led, consciously or not, to black patients being denied treatment for multiple medical conditions, Darsheel Vyas, Leo Eisenstein and David Jones Written in August in the New England Journal of Medicine.
Doctors said problems with race-norms also exist in the criminal justice system, where it is used to help determine police intervention in communities and prison sentences. Some members of Congress wants to end the algorithm Discriminating against women and people of color, deciding everything from the type of advertisements people see online to how their applications for jobs, credit cards and other products are treated.
“Former forms of racial discrimination based on human prejudices are now being embedded in algorithms that appear to be race-neutral, but not because they are based on data and racial profiling,” said Dorothy Roberts, a professor in Pennsylvania University of African Studies, law and sociology that use algorithms. “Technology can be used to promote equality or permanent inequality. It depends on who is controlling it and which one. Putting data into the algorithm. “