As reported by Law360 (subscription), The NFL has formally agreed to end the use of “race-norming,” race-based concussion testing, in the assessment of claims for payouts from the recent uncapped football concussion injuries settlement awarded to a class of former players who suffered painful and debilitating injuries from repetitive head traumas during their careers in the NFL. The decision was revealed after a Pennsylvania federal judge unsealed a settlement agreement between the NFL and the class counsel representing former players in the league’s landmark concussion settlement program.
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 racist 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 for Plaintiffs in the NFL concussions litigation, have complained for years that the race-norming was being used to minimize payouts to black players.
Under the agreement, “no race norms or race demographic estimates — whether Black or White — shall be used in the settlement program going forward,” and Black players will have an opportunity to have their claims reviewed to restore justice to the settlements overall.
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