A federal magistrate judge overseeing mediation between the NFL, concussion class counsel Chris Seeger of Seeger Weiss LLP and former player attorneys from Zuckerman Spaeder LLP to end the controversial use of race-based norms in cognitive testing in the NFL concussion settlement said in an update on the status of those talks that the parties could agree on a new testing program “before summer’s end.”

 

In a report dated June 11 and filed Tuesday, U.S. Magistrate Judge David Strawbridge said that the talks were progressing and that the court had been in regular contact with a court-appointed expert working with a panel of neuropsychologists tasked with developing the new standards that do not apply norms based on race.

 

The update comes after the NFL and Seeger, the attorney for the settlement class who negotiated the deal, pledged to end the use of race norms in the settlement earlier this month amid allegations that such norms unlawfully discriminate against former Black players seeking payouts from the 2015 uncapped settlement, particularly those seeking payouts for dementia.

 

According to the update, race norms may still be in use for current claims in the settlement, though claims that would be denied “solely” due to the use of demographic adjustments will be put on “hold” until the completion of the mediation process. Those claims will then be re-scored.

 

The plan is for those Black players who may have already been denied claims or were awarded lower payouts to have their tests re-scored at some point once the new testing program is established.

“Race norming” is a type of statistical manipulation used in neuropsychological testing in which Black players are assumed to start out with lower baseline cognitive functioning than white players. Critics have alleged that this makes it harder for Black players to show the necessary cognitive decline to receive concussion settlement payouts.

The NFL has argued that the origins of race norms in neuropsychological testing were to stop bias against Black individuals, but both the league and Seeger have acknowledged that the practice is inappropriate in this context and that its use needs to be re-examined more broadly.

The sides have been working for several months to eliminate the use of race norms, but they are waiting on recommendations from the expert panel for a new testing system as concern remains about the accuracy of such a new system and alleged fraudulent settlement claims.

Law360: https://www.law360.com/articles/1394186/nfl-race-norming-settlement-expected-by-end-of-summer