More Black NFL retirees win dementia cases in rescored tests

Aug 11, 2022, 6:12 PM | Updated: Aug 12, 2022, 10:08 am
FILE - Former NFL player Ken Jenkins exits the building after delivering tens of thousands of petit...

FILE - Former NFL player Ken Jenkins exits the building after delivering tens of thousands of petitions demanding equal treatment for everyone involved in the settlement of concussion claims against the NFL, to the federal courthouse in Philadelphia, on May 14, 2021. Hundreds of Black NFL retirees denied payouts in the $1 billion concussion settlement now qualify for awards after their tests were rescored to eliminate racial bias, according to a report released Friday, Aug, 12, 2022. (AP Photo/Matt Rourke, File)

(AP Photo/Matt Rourke, File)

PHILADELPHIA (AP) — Two years after a pair of former players sued the NFL over the treatment of Black retirees in the league’s $1 billion concussion settlement, hundreds of men whose medical tests were rescored to eliminate race bias now qualify for awards.

The newly approved payouts, announced in a report Friday, are a victory for NFL families in the decade-long legal saga over concussions. The 2020 lawsuit unearthed the fact the dementia tests were being “race-normed” — adjusted due to assumptions that Black people have a lower cognitive baseline score. Changes to the settlement made last year are meant to make the tests race-blind.

The new results will add millions to the NFL’s payouts for concussion-linked brain injuries. A league spokesman did not return a phone call Friday or respond to emails sent in recent weeks seeking comment on the rescoring.

Of the 646 Black men whose tests were rescored, nearly half now qualify for dementia awards. Sixty-one are classified as having early to moderate dementia, with average awards topping $600,000; nearly 250 more have milder dementia and will get up to $35,000 in enhanced medical testing and treatment, according to the claims administrator’s report.

Former players, lawyers and advocates say they’ll now turn to getting the word out to more players who could receive awards.

“Our work has produced some great results and has opened many eyes,” said Ken Jenkins, a former Washington player who, along with his wife, petitioned the federal judge overseeing the settlement to make the changes and urged the Justice Department’s Civil Rights Division to investigate. “Now we’re really focused on getting as many players who deserve compensation to be compensated.”

This first group of players had the best chance of success because they otherwise passed the testing protocols and would have qualified if they were white. Thousands of other Black former players can ask to be rescored or retested, but their cases might not be as strong based on earlier results on dementia, validity and impairment tests. About 70 percent of active players and 60 percent of living retirees are Black.

The fact that the testing algorithm adjusted scores by race — as a rough proxy for someone’s socioeconomic background — went unnoticed for several years until lawyers for former Steelers Kevin Henry and Najeh Davenport sued the league. Factors such as age, education and race have long been used in neurology to help diagnose dementia. But experts say the formula was never meant to be used to determine payouts in a legal case.

“In 2022, how can you possibly think that another human being comes out of the womb with less cognitive ability? It’s just impossible to believe that that can be true,” Jenkins said. “It’s unspeakable.”

Advocates fear that many former players don’t know they can be rescored or retested, especially if they have cognitive issues and live alone.

“Men who are homeless, men who originally signed up but their cognitive function changed, men who are divorced or isolated — we are going to go looking for them,” said Amy Lewis, Jenkins’ wife.

The couple, once critical of class counsel Chris Seeger for his response to the issue, now work with him to spread the word.

Seeger — lead lawyer for the nearly 20,000 retired players, who negotiated the settlement with the NFL — has apologized for initially failing to see the scope of the racial bias. He vowed in a recent interview to “make sure the NFL pays every nickel they should.”

The league’s tally just passed $1 billion in approved claims. However, appeals and audits mean actual payouts lag behind that number and now stand at about $916 million. Payouts include awards for four other compensable diagnoses: Alzheimer’s disease, Parkinson’s disease, Lou Gehrig’s disease and deaths before April 2015 involving CTE, or chronic traumatic encephalopathy.

As reviewers tackle the thornier dementia claims, the process has slowed and audits and appeals intensified.

“Their mantra is deny, deny, delay until you die,” said James Pruitt, 58, a wide receiver who played for Indianapolis and Miami from 1986 to 1991.

After his NFL retirement, Pruitt became a teacher and middle school principal in Palm Beach County, Florida. But in 2010, in his mid-40s, the district asked him to step down. He could no longer perform his duties. Over time, he stopped calling on friends from his playing days.

“I don’t get out, and I don’t remember a lot of things. I’ve been told that I repeat things,” he said. “I’m kind of embarrassed by the whole situation.”

After the settlement was approved in 2015, he and his wife attended meetings with lawyers who traveled the country to sell the plan to retired players’ groups.

“We were told … this was going to be a very easy process, you just need to go to the doctors, get a qualifying diagnosis from them,” said Traci Pruitt, 42. “Yet here we are six years later, and we’re still getting the runaround.”

The couple has twice been approved by doctors only to have the decision overturned — once after their first doctor was removed from the program. Their lawyer believes they’ll be successful on their third try, under the race-neutral scoring formula. They’re still waiting to hear.

Traci Pruitt, an accountant who works from home, said an award would ensure she gets the help she needs to care for her husband: “While I love him, I don’t necessarily have that background and skill set.”

Seeger said he believes the claims process is picking up steam after a slow start.

“I know folks have said they weren’t moving that well for awhile. I think we’ve won some appellate battles with the courts,” Seeger said. “I don’t think the NFL expected to pay $1 billion — and we’re about to cross $1 billion.”

___ Follow AP Legal Affairs Writer Maryclaire Dale on Twitter at https://twitter.com/Maryclairedale

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More Black NFL retirees win dementia cases in rescored tests