Jonathan P. Baird

Since the 2013 settlement of the NFL concussion lawsuit, there continue to be legal skirmishes about compensation. Two black players, Kevin Henry and Najeh Davenport, sued after they were refused a payout under the compensation scheme for brain injuries. The players accused the NFL of racial bias in its administration of settlement funds through a practice called race-norming.

In its use of race-norming, the NFL compared a player’s cognitive test scores with the supposed norm for his demographic group. Under the methodology, black players were assumed to possess a lower level of cognitive function than the average white player. In order to qualify for compensation, the average black player had to demonstrate a greater level of cognitive decline than their white teammates. They needed to score lower to qualify.

To quote NFL safety Eric Reid:

“Race-norming equals blacks are dumber than whites so the brain injuries they suffered didn’t effect them as traumatically because they were dumb to begin with.”

The NFL defended its practice saying that race-norming was used to forestall bias in aptitude tests but then it announced it would stop using the race-based formula.

Judge Anita Brody, the federal court judge overseeing the concussion settlement, threw out the lawsuit filed by Henry and Davenport but she asked for a report about the use of a race-based formula to measure cognitive impairment and to determine eligibility for compensation.

So far, 2000 NFL retirees have filed dementia claims and there have been fewer than 600 awards. The vast majority of NFL retirees are black. Awards have averaged $516,000 for the 371 former players diagnosed with early stage dementia and $715,000 for the 207 players diagnosed with moderate dementia.

Even if not badly intentioned, the NFL’s practice of race-norming reeks of eugenics and our past societal history of scientific racism. While it is little remembered now, racists justified the enslavement of black people by spreading bogus “scientific” theories of black inferiority. Dr. Katherine Possin, a neuropsychology professor and researcher, responded to the race-norming controversy:

“One danger to the continued use of race norms is it perpetuates a false idea that there are genetic differences in intelligence that fall along race lines and that’s simply not true.”

The plaintiff Kevin Henry, now 52, who had his case dismissed by Judge Brody has described how life is different for him now:

“I had more friends. I was more social. I could carry on a conversation without repeating where I was in the conversation. I could find my way around the city better. I could drive without having accidents. Those kind of things have all changed. I am more of a reclusive person now.”

Henry sustained multiple concussions as a defensive lineman playing eight seasons for the Pittsburgh Steelers. An NFL-approved clinician has diagnosed Henry with mild to moderate dementia but his claim was denied. Henry delineated how he felt watching the NFL’s PR portraying itself as a social justice ally:

“They come out with all these slogans like ‘We care’ and ‘Black Lives Matter’. And I’m sitting there, like, you’re lying. You’re lying out of your teeth. It’s so painful to sit there and watch, knowing that you know something totally different.”

I think the race-norming highlights how little progress the NFL has made in seriously addressing its institutional racism. The NFL owners sit atop a massive mountain of cash but their lawyers aggressively fight the claims of black retirees. Denying claims of black players is a money-saving scheme.

It must not be forgotten that the NFL worked for years to hide and minimize the danger of concussions.

To present an overview: of the 32 NFL teams, there are no black owners. Two people of color, Shahid Rafiq Khan, a Pakistani-born American who owns the Jacksonville Jaguars and Kim Pegula, a woman of South Korean descent who co-owns the Buffalo Bills, own NFL teams.

There are three black head coaches and two black general managers in the league. Players of color make up 73% of the NFL but there is a lack of diversity among higher-ups in management and in coaching staffs. There is an acute underrepresentation of African Americans in leadership positions.

This has happened in spite of the Rooney rule established in 2003 which was intended to address racial inequities at the head coaching level. The reality is that the Rooney rule has largely failed. As Jemele Hill has written, NFL owners who are almost all white men have not been willing to let African Americans call plays – either on the field or from the sidelines. Hill wrote:

“This is no different from when franchises presumed that black players weren’t smart enough to play quarterback and lacked leadership skills to command men.”

The NFL owners are representative of the broader American ruling class. They mostly pay lip service to Black Lives Matter. They fund some good social justice endeavors but they maintain the rich white male club just like most Fortune 500 companies do. They guard the 1 percent level money and power and they have a financial set-up they want to maintain. There is an exclusivity to their upper class network that is impervious to change.

I know that many may not be sympathetic to the NFL players but consider this: the average NFL player’s career lasts only 2.5 years. Many suffer brutal neurological and orthopedic injuries. The money is very good but typically very short-lived. About 80 percent of NFL players go bankrupt or suffer financial hardship within two years of leaving the game.

It was wrong when NFL owners blackballed Colin Kaepernick because he had the courage to speak up about unconscionable police brutality. But racism in the NFL cuts far deeper than what happened to Kaepernick. Racism is baked into the NFL. Uprooting it will require much more than slick PR.