Yes, the NFL’s Race-Norming is Bad — But it is Not an Isolated Case
Systemic racism exists in other places, too. Let’s root it out together.
Adrian Curiel on Unsplash
This article was first published on June 10, 2021
By now you’ve undoubtedly heard about the NFL’s practice of “race-norming” in their concussion settlement program to determine which players are eligible for a financial award for the cognitive decline they experience due to brain injuries from playing the game. It’s been in the news recently because the league announced that they would no longer use the method for testing a player’s eligibility.
NFL race-norming in summary
ICYMI, the short story goes like this: After years of denying that their players experienced any debilitating health effects from the many concussions they received from playing the game and fighting numerous lawsuits, the NFL in 2013 agreed to a settlement that would pay damages to former players who suffer dementia or other cognitive diagnoses. The NFL established a neuropsychological testing protocol to determine player eligibility. Then the payouts started.
The program’s testing protocol set a lower cognitive baseline for Black players, requiring them to perform even lower than white players on the tests. In 2020, two African American players sued, claiming the testing protocol used was racially biased. One player, Najeh Davenport, had been initially approved to receive a payout, but the NFL appealed the decision, arguing that the results of his neuropsychology test needed to be recalculated using the race-norming method. After the recalculation, Davenport’s test results made him ineligible for damages. By instigating the lawsuit, Davenport, fellow Black NFL alum Kevin Henry, and their lawyer, Cyril Smith, sought to end the practice of race-norming on behalf of themselves and the thousands of Black ex-players who are suffering from the brain injuries they received while playing for the league.
In March 2021, U.S. District Judge Anita Brody, dismissed the case, claiming the players were bound by the 2013 settlement terms. Yet Brody was so concerned about the race-norming practice that she ordered the NFL and the lawyers for the NFL retirees covered by the settlement into mediation to prepare a report on the issue. At the time, the Washington Post reported that both the NFL and the lawyers for the NFL players denied any racial bias in the program. NFL spokesperson Brian McCartney said the league was “pleased with the court’s decision” and expected the mediation to “address the judge’s concerns about the issue.” The lead lawyer for the players, Christopher Seeger, said he had “seen no evidence of racial bias in the settlement program.”
So last week’s announcement by the NFL and the NFL players’ lawyer that they will end race-norming in the concussion settlement program is a complete reversal.
And a great learning moment for all of us.
A textbook example of systemic racism
The NFL is certainly not innocent in this situation. Yet there’s no evidence that they held racial animus against the Black players in the league — racial animus of course being widely understood to be the required ingredient in determining whether something is racist or not.
This is also true for the other partners in the program’s implementation. Some of the neuropsychologists began to recognize the racial bias in the system but told ABC News that they believed the race-norming protocol to be mandated by the NFL. Christopher Seeger, the players’ lawyer, had defended the test scoring, saying it was designed by “leading experts”, approved by Judge Brody, and anyway, it was not required: “it’s up to the evaluating physician to decide whether to include race as a factor.”
Yet despite the lack of racial animus, everyone was complicit in the racist system — cogs in the machine, even when evidence of racial bias that denied Black players access to the same financial damages as white players became obvious.
This is a textbook example of systemic racism.
Systemic racism exists when the system delivers unequal outcomes by race, even if no explicit racism was intended. Ever since the civil rights era, when explicit racial discrimination was made illegal, covert, systemic racism grew undercover, under the guise of seemingly race-neutral “color blindness”.
It takes work to reveal systemic racism
Unequal outcomes by race are a symptom of existing systemic racism. It often requires a discerning gaze and collective action for systemic racism to be revealed.
In the case of race-norming in the NFL’s concussion settlement program, three critical events worked together to reveal its racial bias to the point that the NFL’s players’ representative and the NFL itself were forced to see it too.
First was the lawsuit by Davenport and Henry that brought the race-norming practice to broader awareness and into the legal system. Even if the judge dismissed the case, it did result in the mandate to look into the practice, forcing the NFL to check the data.
Alone that would not have ensured public awareness. The second critical component to revealing the systemic racism of this case was the reporting by ABC News earlier this year that revealed the medical professionals’ discomfort with the practice. Shout out to the free press and investigative journalists.
The final point of pressure came as a result of other Black former NFL players and their families. Their efforts collected 50,000 petition signatures demanding an end to the race-norming practice and for equal treatment for all players. Then they used their celebrity to bring more public attention to the issue by delivering the petitions directly to Judge Brody’s office — with press cameras in tow.
It was this combination of legal action, journalistic investigation, and public outcry that all worked together to bring enough light on the issue that the NFL couldn’t simply ignore it anymore.
This is a lesson for all of us about the work it takes to reveal the racism that still exists within our systems, policies, programs that leads to unequal treatment and outcomes for Black and brown people even when racial malice was not intended.
Read more:
Lawyers: NFL concussion awards discriminate against Blacks (August 25, 2020): https://www.washingtonpost.com/health/lawyers-nfl-concussion-awards-discriminate-against-blacks/2020/08/25/7caa3454-e718-11ea-bf44-0d31c85838a5_story.html
Clinicians fear NFL’s concussion settlement program protocols discriminate against Black players (February 3, 2021): https://abcnews.go.com/Sports/clinicians-fear-nfls-concussion-settlement-program-protocols-discriminate/story?id=75646704
NFL’s ‘race norming’ practice may deny Black players equal compensation for injuries (April 6, 2021): https://www.pbs.org/newshour/show/nfls-race-norming-practice-may-deny-black-players-equal-compensation-for-injuries
Judge tosses suit over ‘race-norming’ in NFL dementia tests (March 8, 2021): https://apnews.com/article/judge-tosses-race-norming-suit-nfl-dementia-tests-ed61e9917fcd94d79c1fe79a13e037e0
NFL families seek to end ‘race-norming’ in $1bn concussion settlement (May 14, 2021): https://www.theguardian.com/sport/2021/may/14/nfl-race-norming-concussion-settlement
NFL to halt ‘race-norming,’ review Black claims in $1 billion concussion settlement (June 2, 2021): https://www.espn.com/nfl/story/_/id/31554110/nfl-halt-race-norming-review-black-claims-1-billion-concussion-settlement
Opinion: NFL should apologize for using disgraceful practice of race-norming (June 2, 2021): https://www.usatoday.com/story/sports/columnist/mike-freeman/2021/06/02/nfl-apologize-using-disgraceful-practice-race-norming/7511443002/
