Judge Dismisses Lawsuit Challenging 'Race-Norming' in NFL Dementia Tests

Timothy Rapp@@TRappaRTFeatured ColumnistMarch 8, 2021

Pittsburgh Steelers running back Najeh Davenport runs with the ball during the fourth quarter an NFL football game against the St. Louis Rams Thursday, Dec. 20, 2007, in St. Louis. The Steelers won 41-24. (AP Photo/Kyle Ericson)
Kyle Ericson/Associated Press

Senior U.S. District Judge Anita B. Brody dismissed a lawsuit from former NFL players Kevin Henry and Najeh Davenport, who argued that the league's settlement fund allows for "'race-norming' in dementia tests for retired NFL players, a practice that some say makes it harder for Black athletes to qualify" for compensation, per Maryclaire Dale of the Associated Press.

Brody instead ordered mediation between the NFL and the settlement's lead lawyer, potentially excluding Henry and Davenport from the negotiations. 

"We are deeply concerned that the Court's proposed solution is to order the very parties who created this discriminatory system to negotiate a fix," lawyer Cyril V. Smith said in a statement. "The class of Black former players whom we represent must have a seat at the table and a transparent process."

Henry, Davenport and their lawyers have argued that doctors often take race into consideration as a demographic factor when testing for dementia and that assumptions that Black athletes have a lower baseline for cognitive functioning than their white counterparts can make it harder for those Black athletes to qualify for awards as a part of the NFL's $1 billion settlement with its former players.

In other words, Henry and Davenport believe they would have been awarded a part of the settlement if they were white. To date, the NFL has paid out more than $765 million to former players with neurocognitive issues linked to head injuries suffered during their careers. 

But, per Dale, dementia claims are often rejected after the NFL challenges them. Smith told Dale that Davenport's award was among those the NFL appealed and asked to be reevaluated using racial norms which would result in his claim failing.

Lead class counsel Christopher Seeger previously said he did not believe there was any racial bias in the settlement, while NFL spokesperson Brian McCarthy called it "entirely misguided," per Dale.

"The use of a deliberate, explicit, racial classification—with Black and white former players automatically subjected to different standards—is a blatant violation of the law," lawyer Cy Smith countered in court filings in August.