The race-based norms that had been used in the N.F.L. dementia tests — one for white former players and another for Black former players — assumed that Black former players started with worse cognitive function than white former players. A Black player’s cognitive skills would have had to fall to a lower threshold than a white former player’s in order to qualify for a payout, or for the Black player to qualify for the same payout as a white player, all else being equal.
Cyril Smith, a lawyer for Henry and Davenport, asserted that white players’ dementia claims were being approved at two to three times the rate of Black players’. Smith has been unable to substantiate that discrepancy because, he said, the N.F.L. and the administrator of the settlement have refused to provide any data on settlement payouts.
The case attracted the attention of Senator Cory Booker of New Jersey, Senator Ron Wyden of Oregon and other members of Congress, who requested data from the N.F.L. to determine whether Black players were facing discrimination. An ABC News report prompted more than a dozen wives of Black retired N.F.L. players to send to Judge Brody a petition with nearly 50,000 signatures calling for an end to the use of race-based norms.
While some former players have blamed the N.F.L., others have criticized Christopher Seeger, the lead lawyer for the entire class in the class action. The players say Seeger knew about the abuse of race-based benchmarks as early as 2018 and did not address the issue. Lawyers for Henry and Davenport asked the court to replace Seeger in March 2021.
Seeger later apologized for not having recognized the problems caused by the use of separate benchmarks for Black and white players and vowed to rid the settlement of potential racial bias.
“We look forward to further engaging with former N.F.L. players and implementing this agreement, which will improve upon a settlement that has already provided nearly $1 billion in benefits,” Seeger said in a statement on Friday.