NFL Denounced for Using Racist Criteria to Avoid Paying Black Retirees in Concussion Settlement

The National Football League is coming under increased scrutiny for using racially discriminatory criteria to evaluate former players for neurocognitive impairments, a practice that critics say has enabled the league to deny compensation to Black retirees who might otherwise be entitled to payouts under a billion-dollar concussion settlement approved in 2015.

“This is classic systemic racism. Just because I’m Black, I wasn’t born with fewer brain cells.”
—Ken Jenkins, former NFL player

“This is classic systemic racism,” former NFL player Ken Jenkins told The Hill on Friday. “Just because I’m Black, I wasn’t born with fewer brain cells.”

Jenkins was referring to the NFL’s decision to use different scales to interpret cognitive functioning among Black and white ex-players. To determine eligibility for payouts worth between $27,000 and $5.3 million, the league has reportedly encouraged doctors to “adjust” for race by comparing an individual’s neurocognitive test results to a statistical benchmark based on population averages among racial groups.

Because the benchmark for Black retired players has been set at a lower threshold, they must demonstrate more significant neurocognitive impairment to qualify for benefits, leading some to describe the NFL’s practice as a “resurgence of racialized medicine” that allows the league to “ban[k] on biological racism.”

The NFL claims that so-called “race-norming” prevents false dementia diagnoses in healthy ex-players, but critics say the practice makes it easier for the NFL to deny Black retired players from accessing financial recompense for brain injuries sustained during their time on the gridiron.

Philip Gasquoine, a neuropsychology professor at the University of Texas Rio Grande Valley, told The Hill on Friday that if a Black player gets “exactly the same score on the test as the white player, because it was estimated that the pre-existing score was lower, they’ve got less chance of being diagnosed with dementia, and so they don’t get the compensation.”

While Jenkins is not suffering from dementia or other neurocognitive impairments stemming from head traumas experienced during his NFL career, he is an advocate for the hundreds if not thousands of retirees who have been deemed ineligible for payouts as a result of racist assumptions about the mental capacities of Black people.

On Friday, Jenkins delivered an online petition signed by more than 50,000 people to U.S. District Judge Anita Brody.

Brody, who presided over the concussion settlement and approved the use of race-based benchmarks to evaluate brain injury-related claims, picked attorney Christopher Seeger as lead counsel for roughly 20,000 ex-players in the class-action suit against the NFL. The petition asks Brody to choose a new attorney to represent the retirees and demands equal treatment.

In March, however, Brody dismissed legal actions filed last August by Kevin Henry, a defensive end for eight seasons, and Najeh Davenport, who spent seven years in the league as a running back. The two Black former players—both of whom say they suffer from neurocognitive impairments after enduring multiple concussions during their careers—have appealed Brody’s ruling.

When Henry and Davenport filed their lawsuit almost nine months ago, the pair accused the NFL of “explicitly and deliberately” discriminating against Black athletes by evaluating their neurocognitive exam scores through the lens of racial averages, as the New York Times explained at the time.

“When Davenport took a neurological exam in 2019, an NFL-approved doctor found that his use of language and his executive functioning—or ability to manage and regulate his mental processes—were diminished enough to qualify for compensation,” the Times reported. “The doctor did not apply the special scale used to test Black players. Davenport received a letter that confirmed he was eligible for a payout.”

The NFL, however, “appealed the award and said that when Davenport’s scores were recalculated accounting for his race—something the league called an ‘industry standard’—Davenport was not impaired in any category, and ineligible for a payout,” the newspaper noted.

Something similar happened to Henry, The Hill reported Friday: “An NFL-approved clinician initially found that he qualified for mild to moderate dementia, but his claim was nonetheless denied. A second clinician, after adjusting his raw scores using a ‘full demographic model… which includes age, education, race/ethnicity and gender,’ found he did not qualify as impaired under the settlement.”

As the news outlet noted, “Henry said it’s painful to watch the NFL portray itself as a social justice ally while denying him compensation for what he and his wife, Pamela, say is clear impairment.”