O’Neil: There’s no applauding NFL for finally halting the ‘race-norming’ that never should have been practiced

“To their credit,” said Mike Florio, host of Pro Football Talk. “the NFL has decided to scrap that process altogether.”

“Thank you NFL,” said Chris Simms.

Of all the possible responses, gratitude seems utterly inappropriate to the NFL’s decision to stop contesting financial settlements to former players based on a presumption that Black players start out with lower cognitive functioning than their white counterparts. It’s appalling that it ever happened. Unconscionable.

You don’t get credit for halting a nakedly racist practice even if you were allowed to use that nakedly racist practice under the terms of the settlement for the class-action lawsuit filed on behalf of former players for the lasting effects from the head trauma suffered while playing in the league.

Yet there were Florio and Simms – two members of the chattering class of the NFL media, both a part of NBC’s “Sunday Night Football” studio crew – doing a bit of corporate laundry. They complimented the NFL repeatedly after it said it would stop asking – and in some cases even demanding – that something called race norms be used to determine whether a former player showed significant cognitive decline to qualify for a financial settlement. Race-norming. It’s as awful as it sounds, and to understand why you first need a sketch of the broader picture.

It starts with the class-action lawsuit filed on behalf of former NFL players for the long-term consequences of head injuries sustained while playing in the league. That case – which covers as many as 20,000 former players – was settled in 2013. Payouts began in 2015 and could wind up exceeding $1 billion. Under the terms of that settlement, former players were eligible to undergo a neuropsychological examination to determine their level of cognitive ability. The results of this test were then compared to a baseline estimate to determine if the level of cognitive decline was sufficient to qualify for financial compensation

It’s that estimate of the baseline cognitive function that became an issue because the terms of the settlement allowed for race to be used as a factor in evaluating cognitive decline. More specifically, it allowed for an estimate developed by Dr. Robert Heaton in the early 1990s that determined Black Americans have – on average – lower cognitive function than their white counterparts. The result was that two starting points were used in evaluating potential cognitive decline and lawyers representing Black players asserted there were repeated instances of Black players being denied compensation for injuries even when having the same test scores as white players who had qualified for an award.

Why would the NFL allow this? Well, you’d have to ask the league for a moral or ethical justification, but legally, it did so because the terms of the settlement allowed that. Reducing exposure is how an accountant would put it. Lessening the liability.

The better question is how the lawyer representing the players would allow the possibility for this kind of double standard for any employees let alone in a lawsuit where more than half of the eligible players are Black. Chris Seeger – who’s presiding over the settlement on behalf of the players – spent more than a year denying that this double standard had been used to deny benefits to players. Just this week he admitted to ABC Television he was wrong for allowing this to be included and for arguing the league had not used it. He apologized to those affected, and he has vowed to keep those standards from being used and to re-evaluate any instances in which those standards were applied.

The NFL followed with its own corporate statement in which it declared it would stop using the so-called “race norms” when evaluating claims. Now, the league never admitted to using those norms to deny a claim, but it vowed to review all claims to make sure it wasn’t applied.

And that’s where the NFL wants the discussion to end.

“Kudos to everyone involved for doing the right thing,” Florio said.

“Yeah,” said Chris Simms. “It’s the right thing, there’s no doubt about it. It was just a bad look altogether on a human perspective.”

This is about more than optics, though. It’s not something that you can excuse by saying, “Whoops, my bad.”

What started as thousands of former players suing the NFL for failing to disclose the long-term cognitive risks of head injuries has somehow gotten worse. The league has denied claims of Black former players because it argued those players started out with a lower cognitive ability than their white counterparts. But it’s not just the NFL because the lawyers in charge of representing the players allowed that double standard to be included in the settlement and then denied that it was being used for more than a year before finally acknowledging that it was.

The answer to this is not to applaud the NFL for finally getting it right or to congratulate the lawyer representing the players for finally acknowledging what Black former players and their families said was happening. The only ethical response is to ask how in the world this situation got to the point that someone allowed anyone to assume that a college-educated Black man needed a lower score on cognitive tests than his white counterparts to be deemed worthy of compensation.

Anyone who was part of that calculation should not be in a position to make that kind of mistake again, yet not even a week later it appears that some are too eager to provide the benefit of the doubt.

“I’d like to think that it wasn’t deliberate,” Florio said. “I’d like to think that the NFL didn’t say, ‘Hmmmmmm.’ I think that that practice is so deeply embedded in the industry, into the folks who are trusted to making these determinations, that it just kind of trickled in and nobody spotted.”

“I hope you’re right,” Simms said.

Florio: “That’s what I think, and regardless, it’s gone now.”

Simms: “Good for the NFL.”

Nope. This was terrible for the NFL. Unconscionable.

Further reading:

• Black former NFL players say racial bias skews concussion payouts
By Ken Belson, New York Times, Aug. 25, 2020

• NFL asked to address race-based evaluations in concussion settlement
By Ken Belson, New York Times, March 9, 2021

• NFL concussion settlement will drop race-based assessments for payouts
By Ken Belson, New York Times, June 2, 2021

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