As reported by Law360 (subscription), after years of public outcry and multiple legal challenges, the NFL has announced that it will finally end the use of “race-norming,” a race-based concussion test, in the assessment of claims for payouts from a recent $1 billion settlement awarded to a class of former players who suffered painful and debilitating injuries from repetitive head traumas during their careers in the NFL. Race-norming is a type of statistical manipulation used on neuropsychological testing; it is extremely controversial in the NFL context where it was assumed Black players start with lower baseline cognitive functioning than white players. This distortion had the effect of making it much more difficult for black players injured by concussions to prove their decline than otherwise equivalent white players.
Plaintiffs lawyers, including Lieff Cabraser partner Wendy R. Fleishman, who serves as co-lead counsel in the NFL concussions litigation, have complained for years that the race-norming was being used to minimize payouts to black players. In a statement, the NFL said it is “committed to eliminating race-based norms in the program and more broadly in the neuropsychological community.” The league also announced plans to work with a lawyer for the class of former players to devise a new assessment program under the settlement with input from a panel of leading neuropsychologists.
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