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NFL concussion settlement: Many Black players haven’t reapplied after race change

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News last week that dozens of retired Black NFL players became eligible for payouts from the $1 billion-plus concussion settlement, after previous rejections, signaled that eliminating structural race bias within the seven-year-old deal had begun to bear fruit.

Nevertheless it is a small first step within the retesting and neurological rescoring, potentially, of an estimated 4,000-plus retired players who were believed to have been denied payments since the settlement’s provisions allowed doctors to assign them lower baseline cognitive scores than their white counterparts.  That made it tougher to prove a diminished mental capability from playing football, resulting in changes implemented in March that did away with the “race-norming” practice.

But is it enough? Greater than 2,500 of the 4,000 players who were believed to have suffered race-norming have yet to start the strategy of re-applying, in response to a player advocate. And a lawyer representing retired players, Jason Lucasevic, asked the court in a motion this week to review the race-norming changes, noting two of his Black clients recently died after being denied advantages in 2017 and 2019. Marvin Owens, who played two seasons within the Seventies, was notified in April he was eligible for retesting but died July 12, 2022.

“Under these circumstances…the modifications can never make Mr. Owens whole for the discrimination that he experienced and the loss of advantages he endured for the past 4 (4) years,” Lukasevic’s motion said, which followed with the same story in regards to the now late San Diego Charger Booker T. Brown.  Brown died July 18, 2022.

Dr. Amy Lewis, a retired-player wife who helped spearhead the race-norming changes and is now chair of the brand new court-recognized Player Advocacy Committee, said there may be a process for the estates of the deceased men to use for awards. But she conceded the proof might be within the pudding.

“We’re really hopeful the NFL will do the fitting thing here and never attempt to do a workaround in order that they deny the families of those players who’ve died, fairly often with significant (mental) deficits, from playing the sport,” she said.

Advocates like Lewis and Lukasevic are alarmed over what they maintain is the frequency of neurological diagnoses of impairment being re-evaluated by a review board, which then rejects the diagnoses that may have led to an award. The settlement is ready up so players get assessments from two neurologists in what known as the Baseline Assessment Program (BAP). If ruled impaired, their diagnoses are sent to a claims administrator.

However the claims administrator, BrownGreer, almost habitually reroutes negative diagnoses to an entity called the Appeals Advisory Panel, which rejects lots of the claims, Lewis charged.

“They’re using them for just about for every part,” she said of BrownGreer’s reliance on the AAP. “I’ve talked to lots of players’ attorneys, and so they’re saying that there may be gross overreach in the way in which through which the AAP looks at these and reviews these claims. And that’s something we’re very concerned about.”

Lukasevic in his motion charges that under the settlement provisions, the AAP is simply speculated to come into play if there are conflicting opinions of a player’s condition between BAP’s neurologists. Within the motion, he likens the present situation to a BINGO game through which a player wins, but then is denied the pot.

“The claimants on this matter, and other claimants who’ve been denied advantages based on these broad sweeping punitive actions, are suffering,” he wrote. “Sending unequivocal BAP diagnoses … to AAP neuters the BAP and calls into query this system’s very existence.”

BrownGreer, which couldn’t be reached for comment, is given wide latitude under the settlement to handle claims.

Last week, the administrator in its quarterly filing with the court disclosed that of the 646 Black retired players who submitted latest claims since race-norming was eliminated, 61 had their neurological tests rescored and were made eligible for awards, and one other 246 will get BAP advantages, meaning a card with about $35,000 that could be used for medical reimbursement.

“It does show us a few things: One, that we were right, that there was a racist practice in place, and that impact was an economic advantage for the NFL,” Lewis said.

“Fifty percent of a gaggle of 646 players, who when all they did was remove the race norms, then impulsively, they go from either not qualifying to qualifying or a lower award to the next award, just by removing (race-norming) alone,” Lewis continued. “That’s pretty telling to us.”

Lewis estimates about 1,500 players have contacted the system to get retested or neurologically rescored, or are within the strategy of doing so, out of a pool of greater than 4,000.  That leaves greater than 2,500 who’ve been rejected and never reapplied.  The category counsel, SeegerWeiss, is notifying players’ lawyers in regards to the changes.

But many players are impaired, aren’t in contact with their lawyers and even, living “off the grid,” Lewis said.  That’s, partially, where the brand new Player Advocacy Committee is available in, which may reach out to as many players and their families as possible, Lewis said. She expects to use to the court overseeing the settlement for funds for this effort.

Joining her on the committee are two retired players’ wives, 4 retired players and Chris Nowinski, co-founder and CEO of the Concussion Legacy Foundation.

“Every one, reach one is our motto,” she said. “And we would like to get out to players and have them check with their fellow teammates, or wives talking to other wives to be sure that each single player, not only Black players who’ve been race normed, but each player who’s eligible to file a claim ought to be doing so.”

Two years ago, two retired players, Najeh Davenport and Kevin Henry, sued the NFL over race-norming, bringing the difficulty to public light for the primary time. 

The league initially defended the practice as a scientifically approved method, as did the category counsel, Chris Seeger.  Each ultimately backtracked, with Seeger apologizing over his failure to comprehend the effect of the practice.

Seeger guarantees to work with Lewis’ committee to assist players navigate the system, which advocates have long charged is stacked against the retirees. This marks a change within the dynamic, with Seeger long the brunt of criticism he had not done enough to deal with criticisms the settlement was not working as advertised.

“Our collective mission is to assist as many retired players and their families as possible by increasing their access to information and by ensuring greater equity and transparency going forward,” he said in an announcement of his latest partnership with the players’ committee. “Our first meeting in Latest York was successful and set a positive tone for the way in which we are able to work together effectively going forward.”

(Photo: Richard Mackson / USA Today)

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