Former NFL players petition Justice Department to investigate use of 'race-norming' that presumed black patients have lower cognitive function resulting in fewer payouts in $1billion class-action concussion settlement

A group of retired NFL players petitioned the Justice Department to probe the use of race-norming in the league's landmark $1 billion class-action concussion settlement — a practice that may have negatively impacted hundreds, or even thousands, of black former players.

The group traveled to Washington D.C. with their spouses on Wednesday.  

In June, the league pledged to evaluate concussion claims without the use of race-norming, which presumes African-American players start with lower cognitive functioning, making it harder for them to prove neurological decline and qualify for settlements.

But despite the NFL's reversal, the impact of race-norming in concussion settlement is not fully understood, and players are accusing the league of using the practice as a strategy to limit payouts.

'The owners obviously did this to save money,' Charles Mann, a 60-year-old former 49ers and Redskins defensive end, told The Washington Post while petitioning the Justice Department on Wednesday. 'We need fresh blood, new people to come in here and take a look at this.'

A Justice Department spokesperson told the Post that the petition would be reviewed, but declined to say anything more. There is no precedent for the Justice Department investigating a federal lawsuit settlement, according to the Post.

There is no current mediation timeline in the dispute, but more than 1,000 players have submitted dementia-related claims only to be denied, according to court records obtained by the Post.

Former Washington and San Francisco defensive end Charles Mann, 60, was among the players who petitioned the Justice Department on Wednesday, according to the Post. Mann said he feels find cognitively, but recently had a baseline test to see if there was any reason for concern. 'Now I'm just left wondering,' Mann told the Post, 'did they race-norm me?'

A Justice Department spokesperson told the Post that the petition would be reviewed, but declined to say anything more. There is no precedent for the Justice Department investigating a federal lawsuit settlement, according to the Post

The issue first arose a year ago when former Pittsburgh Steelers players Kevin Henry and Najeh Davenport filed a lawsuit alleging race-norming practices in the concussion settlement payouts. Both players claimed that they were denied benefits based on those race-norming practices. 

Senior US District Judge Anita B. Brody dismissed the suit in March on procedural grounds. But with calls for racial justice intensifying in the US, and as she marks 10 years overseeing the NFL concussion case, the 86-year-old judge has issued two later orders suggesting the practice troubles her.

First, she ordered the NFL and the lead players lawyer to mediate the race-norming issue - with help from a diverse panel of medical experts. Then in June, she seated the lawyers for the black former players at their negotiating table.

Senior US District Judge Anita B. Brody dismissed a lawsuit suit by former players against the NFL in March on procedural grounds. But with calls for racial justice intensifying in the US, and as she marks 10 years overseeing the NFL concussion case, the 86-year-old judge has issued two later orders suggesting the practice troubles her

Brody's order came a day after the NFL issued a public pledge to abandon the practice and review the scores of retired players who believe the race-based adjustments deprived them of dementia settlements that average $500,000 or more. News coverage of the NFL's turnabout drew a degree of outrage online from people angry the league ever sanctioned race-norming in the first place.

In a June statement, the NFL noted that the race norms were developed in neuropsychology for benevolent reasons, 'to stop bias in testing, not perpetrate it.' But critics call them outdated and say they were never meant to be used to assess legal damages.

The 2013 settlement ended thousands of lawsuits that accused the NFL of long hiding what it knew about the link between concussions and traumatic brain injury.

Both Brad Karp, the NFL's lead lawyer in the settlement, and Chris Seeger, the lead attorney representing more than 20,000 former NFL players, denied allegations related to race-norming in the dismissed lawsuit, and say that it has been up to doctors to determine when to use the practice and in which cases.

The petition delivered on Wednesday was written by Amy Lewis, the wife of former Washington Redskins running back Ken Jenkins, who insists the league is not to be trusted in this matter.

'We're still looking at foxes guarding the henhouse. ... This is all going on behind closed doors,' Jenkins told the Washington Post. 'Given what happened before, why should we trust them to come up with a new system that's equitable?'

The petition delivered on Wednesday was written by Amy Lewis, the wife of former Washington Redskins running back Ken Jenkins , who insists the league is not to be trusted in this matter. 'We're still looking at foxes guarding the henhouse. ... This is all going on behind closed doors,' Jenkins told the Washington Post. 'Given what happened before, why should we trust them to come up with a new system that's equitable?'

In this November 19, 2014, file photo, lawyer Christopher Seeger, left, and client former NFL player Shawn Wooden speak with members of the media after a hearing on the proposed NFL concussion settlement outside of the U.S. Courthouse in Philadelphia. The NFL on Wednesday, June 2, 2021, pledged to halt the use of 'race-norming' - which assumed Black players started out with lower cognitive functioning - in the $1 billion settlement of brain injury claims and review past scores for any potential race bias

This September 2007, file photo shows Pittsburgh Steelers' Najeh Davenport in Pittsburgh. The NFL on Wednesday, June 2, 2021, pledged to halt the use of 'race-norming' - which assumed Black players started out with lower cognitive functioning - in the $1 billion settlement of brain injury claims and review past scores for any potential race bias. Davenport and another former Steelers player, Kevin Henry, filed the original complaint objecting to race norming

In a statement to the Post, Karp called the petition 'the latest in a series of unfounded attacks on the Settlement.'

'As with prior 'discrimination'' challenges, all of which have been dismissed, this attack is baseless,' Karp said. 'Race norming is a widely used and longstanding practice in the neuropsychological community designed to correct biases in cognitive testing.'

Seeger defended his efforts in the settlement to the Post on Wednesday after previously apologizing to his clients back in June for failing to appreciate 'the scope of the problem.'

Defensive lineman Kevin Henry filed the original complaint that raised the issue of race norming in the concussion settlements

'We have been engaged in a multiyear slugfest with the NFL that has thus far resulted in nearly one billion dollars in benefits to former players. In addition to eliminating 'race norms.', our hope is that the NFL concussion settlement will effectuate broad and permanent change in not only neuropsychology but in making the first step in eliminating race norming — an unfortunate but common practice — in all of medicine and health evaluations,' Seeger told the Post on Wednesday.

While Seeger and Karp described race-norming as 'optional' for doctors, the doctors themselves told the Post that they had no choice but to follow the practice.

Earlier this month, the Post found that the law firm hired by the NFL and Seeger to oversee payouts had repeatedly issued rulings that stressed the use of race-norming. In seven rejected claims reviewed by the Post, that firm, BrownGreer, specifically cited the failure to use race-based norms as the reason for the denial.

Mann said he feels find cognitively, but recently had a baseline test to see if there was any reason for concern.

'Now I'm just left wondering,' Mann told the Post, 'did they race-norm me?'

Strong safety David Bruton #30 of the Denver Broncos is attended to by trainers after a play that would force him out of the game with a reported concussion during a game against the Oakland Raiders at Sports Authority Field at Mile High on December 28, 2014 in Denver