An Un-Level Playing Field

Terry H. Schwadron

June 6, 2021

Thankfully, both the National Football League and a class of 20,000 ex-players suing them now agree that race should no longer be a factor in determining eligibility for compensation for head injuries suffered while playing the game.

Facing petitions of tens of thousands of fans, the NFL, 70 percent of whose players are Black, owned up to having used “race-norming” to justify lower payments to evaluate dementia claims — months after U.S. District Judge Anita Brody had ordered the sides to review the use of separate standards of evaluation.

Last year, two retired Black players had filed suits, which became a class action, accusing the league of “explicitly and deliberately” discriminating against Black players by using separate race-based benchmarks to determine eligibility for dementia-based payouts.

That means individual players can make claims worth hundreds of thousands of dollars, of course; the total cost of settlements could cost the league $1 billion.

But it doesn’t explain why, in this race-sensitized time, the NFL would make the argument in the first place — other than for greed.

To have done so seems to have bastardized a continuing discussion in the worlds of neuropsychology and ethics meant to better balance Black and White expectations in the workplace for the rank use of saving money for the owners. However outrageous the NFL case comes across, do a bit more research, and the issues more generally turn out to be a little more complicated.

As it happens, the NFL lawyer, Christopher Seeger, is now publicly apologizing for his counsel, and probably will be tossed in any future settlement negotiations. In March, Seeger said that he had not seen any evidence of racial bias in the settlement program. He now calls that a “poor choice of words. . .I now have dug into enough claims to tell you that the norms were applied more than they should have been,” Seeger said.

The lawsuit attacking the settlement has failed, but the settlement could be reopened by the presiding judge, especially since both sides now agree the process was wrong.

Bad History

The whole history of the NFL and head injuries is pretty awful. It took years of injuries and many autopsies before the league took responsibility for the results of weekly game violence. The NFL now acknowledges knowingly ignoring the effects of head trauma for decades, and blurring data that showed harmful effects.

In 1994, the league hired Dr. Elliott Pellman, a Guadalajara-educated rheumatologist with no expertise in head trauma to oversee the league’s Mild Traumatic Brain Injury Committee. Through 2005, Pellman insisted that returning to play after a concussion does not involve significant risk, and that there was “no evidence of worsening injury or chronic cumulative effects of multiple MTBIs in NFL players.” The NFL’s eventually settled with thousands of former players.

A new lawsuit grew out of claims that the NFL was discriminating against Black players in the settlements.

An Associated Press story outlined that the league was using “race norming” to lower payments to Blacks. Race-morning is a practice sometimes used in medicine as a rough proxy for socioeconomic factors that can affect someone’s health, and most usually employed in a way that elevates the changes for equal treatment.

This was the opposite. As AP said, “Experts in neurology said the way it’s used in the NFL settlement is too simplistic and restrictive, and has the effect of systematically discriminating against Black players.” The NFL was insisting that factoring in “race-norming,” Black people have lower cognitive skills — meaning that it would be more difficult for them to prove cognitive decline as a result of head trauma.

Overall, the AP said, the scores for cognitive decline would result in far higher awards for white players than Black players. The NFL has not produced public numbers for financial awards by race.

The Psychology World

The American Psychological Association has published intricate guidelines about race and several research studies about the practical problems of interpreting it in a way.

But the basics are clear: American society is an increasingly complex mix of ethnicities and socioeconomic backgrounds that lead to unequal housing, education, health, mental stress and other factors. The simplification of the rules is that agencies, medical staff, and other institutions should go out of their way to take account of any discrepancies in upbringing to offer the best case possible.

Much like standardized educational tests that have been shown to display class/race bias, the medical world is concerned about what it sees as similar built-in advantage for middle-class, generally white privilege.

“Given that human behavior is socially shaped, learned, and transmitted by other people, it is inherently embedded within social cultural systems that define what is normative, acceptable, positive, or not. . . Ethnicity becomes particularly salient when one’s ethnocultural experiences vary from what is dominant in a given context; this contributes to the greater emphasis on ethnicity for ethnic minorities and more recent migrants,” read the APA guidelines.

Thus, “race-norming,” to keep white, suburban experiences from being seen as standard in all matters.

One evaluation of race-norming suggests “Recent studies in the United States indicate that some neurologically intact minority groupings perform well below White Americans on neuropsychological tests. This has sparked the production of race-norms, especially for African Americans, that seek to reduce false positive rates (i.e., neurologically intact individuals misdiagnosed with cognitive impairment) in neuropsychological assessments.”

Another notes that employers can find themselves in a legal bind by engaging in racial preferences, suggesting that job-related skills be separated from cognitive assessments.

You get the idea.

Yes, balancing ethnicities in a mixed society is complicated, but no one outside of the NFL has made it a point to use race-norming to gain financial advantage.

However scientifically neutral or benign the origin of race-norming, its emergence in this case feels like full-blown racism exactly of the sort that we want to note as “institutional,” despite Republican claims of a beneficent American history about race.




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