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Arnold Ahlert / May 24, 2021

The NFL Embraces Wokeness — and Racism

Black players are not getting equal compensation for injuries sustained over their careers.

“When somebody says it’s not about the money, it’s about the money.” ―H.L. Mencken

The NFL is arguably the wokest professional sports organization on the planet. Taking its cues from cop-hating ex-quarterback Colin Kaepernick, the NFL set out to make “social justice” and its commitment to Black Lives Matter an integral part of its corporate zeitgeist. “We the National Football League condemn racism and the systematic oppression of black people,” opined NFL Commissioner Roger Goodell in a video statement released last June. “We the National Football League admit we were wrong for not listening to NFL players earlier and encourage all to speak out and peacefully protest. We the National Football League believe Black Lives Matter.”

Really? Then perhaps Goodell might explain why his league employs a concept known as “race norming” to determine which NFL players who suffer from dementia or other brain injuries incurred during their playing days may be entitled to what level of payouts they receive from a $1 billion healthcare settlement for such injuries.

What is race norming? A practice originally embraced by the federal government during the Carter administration whereby adjusting test scores to account for the race or ethnicity of a test-taker was seen as a means of counteracting alleged racial bias in aptitude tests administered to job applicants. It was instituted to meet equal employment opportunity and affirmative action goals. With the passage of the Civil Rights Act of 1991, race norming, along with all other methods of changing or modifying employment-related tests on the basis of race or ethnicity, became illegal.

Nonetheless, the NFL uses an algorithm for dementia testing to determine the level of compensation awarded to injured athletes — one that assumes black men start their football careers with lower cognitive skills. As a result, injured black athletes must score much lower than whites on cognitive skills testing to win an award.

The $1 billion settlement fund is overseen by Judge Anita Brody of the U.S. District Court for the Eastern District of Pennsylvania. Last March, she tossed a civil rights lawsuit filed by the law firm of Zuckerman Spaeder on behalf of NFL players Kevin Henry and Najeh Davenport alleging the practice is discriminatory, calling it “an improper attack on the Settlement Agreement.” Brody subsequently stated in a filing that she felt the lawsuit had raised “a very important issue” and asked a magistrate judge to compile a report on the problem.

“We are pleased with the Court’s decision,” an NFL spokesperson said at the time, “and look forward to working with Class Counsel and Magistrate Judge Strawbridge to address the Court’s concerns.”

Attorney Christopher Seeger, who served as class counsel for the former NFL players and negotiated the landmark settlement with the league, seemingly concurred. In a statement issued through a spokesperson on his behalf, he insisted that “the use of these norms has always been left to the clinical judgment of the neuropsychologist and was never mandated by the settlement,” and that he had “not seen any evidence of racial bias in the settlement program.” He added, “That being said, we are continuing to investigate and review claims to determine if any claim was inappropriately denied as a result of application of these adjustments.”

Regardless, some players decided to push forward. On May 14, Judge Brody was handed 50,000 petitions delivered by former Washington running back Ken Jenkins, 61, and his wife Amy Lewis, demanding equal treatment for black players by bringing issue of race norming, which went unnoticed until 2018, front and center. Jenkins bemoaned the reality that black retirees “have to deal with some insidious, convoluted deals that are being made.”

Jenkins is spot on. Though the majority of the league’s 20,000 retirees are black, only a quarter of the more than 2,000 former players seeking awards for early to moderate dementia have qualified under the current testing program.

Katherine Possin, a neurology professor at the UCSF Memory and Aging Center, reveals the rank hypocrisy of a league whose commissioner also asserts that “systematic oppression of black people” is a given. “Because every black retired NFL player has to perform lower on the test to qualify for an award than every white player,” she declared, “that’s essentially systematic racism in determining these payouts.”

The first lawsuits alleging the NFL knew of links between concussions and brain damage were initially filed in 2011. As the number of lawsuits began to skyrocket, the league decided to avoid litigation by agreeing in 2013 to pay $765 million over 65 years to compensate players for Alzheimer’s disease, dementia, and other diagnoses. Yet when the claims kept pouring in, Brody worried that the fund would be depleted much earlier than anticipated. She ordered the removal of the cap.

At that point, the NFL began challenging hundreds of claims.

Yet reality intrudes. In examples shared with the Associated Press, race-based differences in scoring were undeniable. The raw score of 15 for naming animals in the language section was “adjusted” to 35 for whites and 41 for blacks, and the raw score of 51 for “block design” in the visual perception category was similarly adjusted to 53 for whites and 60 for blacks.

And like the phony he truly is, Goodell has punted in terms of his league directly addressing the problem. “The federal court is overseeing the operation and implementation of that settlement, and we are not part of selecting the clinicians, the medical experts, who are making decisions on a day-to-day basis,” he stated. “And so obviously we’ll work with the court, we’ll continue to see if there are changes that need to be made, but those will be determined by the court.”

Why does a court need to determine anything? Why can’t the league simply issue a statement that going forward, everyone, regardless of race, will be treated equally in terms of assessing cognitive decline?

Ken Jenkins knows the answer. “Race-norming may have had a benign origin,” he said, “but it quickly morphed into a tool that can be used to help the folks in power save money.”

That would be the “folks in power” who just signed an 11-year deal with TV partners to exclusively broadcast NFL games throughout the regular season and playoffs. The league amassed $5.9 billion a year during its current contracts, and this new agreement, which begins in 2023, represents an increase of 80% over the previous such period, ultimately amounting to a whopping $113 billion over 11 years.

Here’s hoping black NFL retirees, injured by the game they played — but denied equal compensation for those injuries due to race norming — get a sizable chunk of it.

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