NFL concussion settlement: Many Black players have not reapplied after race change

News last week that dozens of retired Black NFL players became eligible for payouts from the $1 billion-plus concussion settlement, after previous rejections, signaled that eliminating structural race bias in the seven-year-old deal had begun to bear fruit.

But it is a small first step in the retesting and neurological rescoring, potentially, of an estimated 4,000-plus retired players who were believed to have been denied payments because the settlement’s provisions allowed doctors to assign them lower baseline cognitive scores than their white counterparts.  That made it more difficult to prove a diminished mental capacity from playing football, leading to changes implemented in March that did away with the “race-norming” practice.

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But is it enough? More than 2,500 of the 4,000 players who were believed to have suffered race-norming have yet to begin the process of re-applying, according to a player advocate. And a lawyer representing retired players, Jason Lucasevic, asked the court in a motion this week to review the race-norming changes, noting two of his Black clients recently died after being denied benefits in 2017 and 2019. Marvin Owens, who played two seasons in the 1970s, was notified in April he was eligible for retesting but died July 12, 2022.

“Under these circumstances…the modifications can never make Mr. Owens whole for the discrimination that he experienced and the loss of benefits he endured for the past four (4) years,” Lukasevic’s motion said, which followed with a similar story about the now late San Diego Charger Booker T. Brown.  Brown died July 18, 2022.

Dr. Amy Lewis, a retired-player wife who helped spearhead the race-norming changes and is now chair of the Player Advocacy Committee, which is working with class counsel,  said there is a process for the estates of the deceased players to apply for awards. But she conceded the proof will be in the pudding.

“We are really hopeful the NFL will do the right thing here and not try and do a workaround so that they deny the families of those players who have died, very often with significant (mental) deficits, from playing the game,” she said.

Advocates like Lewis and Lukasevic are alarmed over what they maintain is the frequency of neurological diagnoses of impairment being re-evaluated by a review board, which then rejects the diagnoses that would have led to an award. The settlement is set up so players get assessments from two neurologists in what is called the Baseline Assessment Program (BAP). If ruled impaired, their diagnoses are sent to a claims administrator.

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But the claims administrator, BrownGreer, almost habitually reroutes negative diagnoses to an entity called the Appeals Advisory Panel, which rejects many of the claims, Lewis charged.

“They’re using them for pretty much for everything,” she said of BrownGreer’s reliance on the AAP. “I’ve talked to a lot of players’ attorneys, and they’re saying that there is gross overreach in the way in which the AAP looks at these and reviews these claims. And that’s something we are very concerned about.”

Lukasevic in his motion charges that under the settlement provisions, the AAP is only supposed to come into play if there are conflicting opinions of a player’s condition between BAP’s neurologists. In the motion, he likens the current situation to a BINGO game in which a player wins, but then is denied the pot.

“The claimants in this matter, and other claimants who have been denied benefits based on these broad sweeping punitive actions, are suffering,” he wrote. “Sending unequivocal BAP diagnoses … to AAP neuters the BAP and calls into question the program’s very existence.”

BrownGreer, which could not be reached for comment, is given wide latitude under the settlement to handle claims.

Last week, the administrator in its quarterly filing with the court disclosed that of the 646 Black retired players who submitted new claims since race-norming was eliminated, 61 had their neurological tests rescored and were made eligible for awards, and another 246 will get BAP benefits, meaning a card with about $35,000 that can be used for medical reimbursement.

“It does show us a couple of things: One, that we were right, that there was a racist practice in place, and that impact was an economic advantage for the NFL,” Lewis said.

“Fifty percent of a group of 646 players, who when all they did was remove the race norms, then all of a sudden, they go from either not qualifying to qualifying or a lower award to a higher award, just by removing (race-norming) alone,” Lewis continued. “That’s pretty telling to us.”

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Lewis estimates about 1,500 players have contacted the system to get retested or neurologically rescored, or are in the process of doing so, out of a pool of more than 4,000.  That leaves more than 2,500 who have been rejected and not reapplied.  The class counsel, SeegerWeiss, is notifying players’ lawyers about the changes.

But many players are impaired, aren’t in touch with their lawyers and even, living “off the grid,” Lewis said.  That is, in part, where the new Player Advocacy Committee comes in, which can reach out to as many players and their families as possible, Lewis said. She expects to apply to the court overseeing the settlement for funds for this effort.

Joining her on the committee are two retired players’ wives, four retired players and Chris Nowinski, co-founder and CEO of the Concussion Legacy Foundation.

“Each one, reach one is our motto,” she said. “And we want to get out to players and have them talk to their fellow teammates, or wives talking to other wives to make sure that every single player, not just Black players who have been race normed, but every single player who is eligible to file a claim should be doing so.”

Two years ago, two retired players, Najeh Davenport and Kevin Henry, sued the NFL over race-norming, bringing the issue to public light for the first time. 

The league initially defended the practice as a scientifically approved method, as did the class counsel, Chris Seeger.  Both ultimately backtracked, with Seeger apologizing over his failure to realize the effect of the practice.

Seeger promises to work with Lewis’ committee to help players navigate the system, which advocates have long charged is stacked against the retirees. This marks a change in the dynamic, with Seeger long the brunt of criticism he had not done enough to address criticisms the settlement was not working as advertised.

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“Our collective mission is to help as many retired players and their families as possible by increasing their access to information and by ensuring greater equity and transparency going forward,” he said in a statement of his new partnership with the players’ committee. “Our first meeting in New York was successful and set a positive tone for the way we can work together effectively going forward.”

(Photo: Richard Mackson / USA Today)

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