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NYT: Agreement reached to scrap race as a factor in NFL concussion settlements

The Times reviewed a copy of the agreement that is now under seal pending a review by US District Judge Anita B. Brody, according to the docket.

In the 46-page document, the NFL and other parties said, “No Race Norms or Race Demographic Estimates — whether Black or White — shall be used in the Settlement Program going forward” and no party is allowed to appeal the claims based on the merit of race or the use of race norms.

The Times report also said an expert panel will organize new norms that will be applicable to “all future neuropsychological tests under the program, all claims that have not yet been ruled on, and all claims that are currently on appeal in which race norms or race demographic estimates may be at issue.”

“We look forward to the Court’s prompt approval of the agreement, which provides for a race-neutral evaluation process that will ensure diagnostic accuracy and fairness in the Concussion Settlement,” Brad Karp, a lawyer for the NFL, said in a statement to the Times.

In 2013, the NFL settled a class-action lawsuit brought by thousands of former players and their families that accused the league of concealing what it knew about the dangers of concussions.

The league agreed to pay $765 million, without admitting fault, to fund medical exams and compensate players for concussion-related health issues, among other things.

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Then in 2020, two retired players sued the NFL for allegedly discriminating against Black players who submitted claims in that settlement. The players, Najeh Davenport and Kevin Henry, said the NFL race-corrected their neurological exams, which prevented them from being compensated.

According to court documents, former players being evaluated for neurocognitive impairment were assumed to have started with worse cognitive function if they were Black. So if a Black player and a White player received the exact same scores on a battery of thinking and memory tests, the Black player would appear to have suffered less impairment. And therefore, the lawsuit stated, would be less likely to qualify for a payout.

In early March, a judge dismissed the players’ lawsuit and ordered a mediator to address concerns about how race correction was being used.

CNN has reached out to Christopher Seeger, the lead lawyer for the plaintiffs, and the NFL, but has not yet received responses.

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