Clinicians fear NFL's concussion settlement program protocols discriminate against Black players

The NFL insists that its concussion settlement program does not require the clinicians who evaluate former players for payouts to make race a factor in their determinations. Several of those clinicians, however, appear to disagree, and some of them fear that the league’s recommended protocols discriminate against Black players.

In August, a group of neuropsychologists who measure cognitive decline in former NFL players seeking financial compensation through the league’s landmark settlement program took to their professional listservs to discuss some recent industry news. Two Black former players — defensive end Kevin Henry and running back Najeh Davenport — had filed a lawsuit against the NFL, accusing the league of “explicitly and deliberately” discriminating against Black players filing dementia-related claims.

The NFL has repeatedly dismissed the lawsuit as “entirely misguided,” claiming that the use of any so-called demographic corrections to interpret test results is left entirely up to “the sound discretion of the independent clinicians administering the tests in any particular case.”

But the former players are alleging that such corrections are, in effect, mandatory. And according to emails sent through private online forums, obtained by ABC News, some of those same clinicians lament that the league’s protocols supersede their professional judgement, sometimes leading to a “drastically different outcome” for former players seeking help.

One neuropsychologist claimed the league’s program manual offered no such flexibility: “I don't think we have the freedom to choose,” the clinician wrote. “If we do, apparently many of us have been doing it wrong.”

Another bemoaned their possible complicity in a system that perpetuated “racial inequity” in payouts: “Especially in the correct [sic] of our current state of affairs, I’m realizing and feeling regretful for my culpability in this inadvertent systemic racism issue,” the clinician wrote. “As a group we could have been better advocates.”

And another contended that while their “required reliance on these norms is spelled out in the manual,” it was still up to them to consider the consequences of their compliance: “Bottom line is that the norms do discriminate against Black players,” the clinician wrote. “So now what? In this time of reckoning, like many professions, I think we need to look closely at the expected and unexpected ramifications of our practices.”

In a pair of wide-ranging interviews with ABC News, which will be featured in a special edition of “Nightline” on Wednesday, Henry and Davenport blasted what they described as a two-pronged program that treats white players one way and Black players another.

“I just want to be looked at the same way as a white guy,” Henry told ABC News. “We bust chops together, bro. We went out together and we played hard together. You know what I mean? It wasn't a white or Black thing. We lost together. We won together.”

At the crux of the controversy: the NFL’s concussion settlement program manual recommends the use of a “full demographic correction,” in which a player’s cognitive test scores are compared to average scores, or “norms,” for similar demographic groups, and then adjusted to account for expected differences in age, gender, education — and race.

The practice, widely known as “race-norming,” is in use across several different medical fields as a supposed safeguard against misdiagnosis. But because these “norms” assume that the average Black player starts at a lower level of cognitive functioning than the average white player at the outset of their careers, the former players say, Black players need to show larger cognitive declines than white players to qualify for compensation.

“What the NFL is doing to us right now … when they use a different scale for African-Americans versus any other race?” Davenport said. “That's literally the definition of systematic racism.”

In response to questions from ABC News, an NFL spokesperson issued a statement saying that the concussion settlement, which has paid out more than $800 million to retirees and their families to date, was “agreed to by all parties, with the assistance of expert neuropsychological clinicians and approved by the courts more than five years ago” and “relied on widely accepted and long-established cognitive tests and scoring methodologies.”

“The settlement seeks to provide accurate examinations to retired players,” the spokesperson continued, “and thus permits, but does not require, independent clinicians to consider race in adjusting retired players’ test scores as they would in their typical practice.”

The NFL also emphasized the role of independent clinicians and third-party administrators in the process.

“The NFL Parties play no role in the independent clinicians’ examinations, and any resulting diagnoses are reviewed by a neutral court-appointed claims administrator,” an NFL spokesperson said. “Challenges to diagnoses are reviewed by neutral court-appointed special masters and ultimately the court itself.”

Attorney Christopher Seeger, who served as class counsel for the former NFL players and negotiated the landmark settlement with the league, issued a statement through a spokesperson that called on the court overseeing the administration of the settlement to issue a “clarification” on the issue.

“The use of race-based demographic norms is ultimately left to the clinical judgment of the neuropsychologist and is not mandated by the settlement,” Seeger said in a statement. “To the extent that there is any perceived confusion, we would support a clarification from the Court to make it clearer that the use of demographic adjustments, including for race, is not required, and that the neuropsychologist examining a player should use their professional judgment to select the appropriate demographic adjustments to apply to the player’s test results.”

The NFL Players Association, the labor union representing current and former players, declined to comment.

But Sen. Ron Wyden, a Democrat from Oregon, part of a group of lawmakers who sent a letter to NFL Commissioner Roger Goodell in September seeking more information on the league’s plans to “address alleged racial bias” in the system, said the practice would appear to undermine the NFL’s stated commitment to addressing racial inequity.

“If ABC’s reporting is true, the NFL has apparently pressured doctors to disqualify Black former NFL players from benefits they earned,” Wyden told ABC News. “Shortchanging former players based on their race is both racist and rank hypocrisy, in light of league’s promises to push for racial justice. The NFL needs to stop trying to run out the clock and finally start treating Black ex-players fairly.”

Race-norming has a long, fraught history, both inside and outside of medicine. But it has its proponents.

In a declaration submitted to the court overseeing the settlement, Dr. Scott Millis, one of the neuropsychologists who helped design the program, said the consideration of “demographic factors, including race, when assessing premorbid intellectual functioning” is both a “widely-used” and “commonly accepted” clinical practice.

“Race demographic normative adjustments, in particular, were designed and intended by the neuropsychological community to correct for the fact that certain racial groups were consistently obtaining disproportionately low scores on cognitive testing and thus were being incorrectly classified as cognitively impaired,” Millis wrote. “Misdiagnoses of cognitive impairments … can be very harmful. A misdiagnosed retired player could undergo unnecessary treatment, or plan his future based on a misunderstanding of his current abilities and likely progressive decline.”

Its critics, meanwhile, say the practice can perpetuate the problem it was designed to address.

In a paper published in JAMA Neurology in December, Dr. Katherine Possin of the Memory and Aging Center at the University of California, San Francisco, criticized the program and warned against “the use of race-adjusted norms as a crude proxy for lifelong social experience.”

“In many clinical situations, false negatives cause even greater harm, such as when needed services are deemed unnecessary,” Posssin and her colleagues wrote. “This case is reminiscent of a damaging, century-long history of assuming that differences on intelligence tests (IQ) are primarily inherited and then using this false assumption to legitimize unequal distribution of resources by social class.”

Henry, 52, played eight seasons in the NFL from 1993 to 2000, all of them for the Pittsburgh Steelers. After he retired, Henry briefly worked for Coca-Cola, but the job didn’t last long. He says he began experiencing headaches, memory loss and depression, all of which he suspected were the result of the repeated head injuries, including 10 concussions, he says he suffered during his playing career. He hoped the NFL’s concussion settlement program could provide a lifeline.

In 2017, Henry was evaluated by a neuropsychologist and a neurologist, who gave him a battery of tests to measure his overall cognitive functioning, including language, learning and memory. They determined that Henry was suffering from a “severe” cognitive impairment consistent with “mild dementia,” which qualified him for compensation from the league. But the claims administrator rejected Henry’s application, citing multiple factors, including concerns about the validity of his performance on the tests and the use of “incorrect normative scores.”

In 2019, Henry was tested again, this time by a different clinician. This time, the clinician applied the “full demographic correction” recommended in the program manual. This time, Henry did not qualify for compensation, leaving him baffled that he should be put in a different category than some of his former teammates.

“I felt so betrayed and I still feel that way,” Henry told ABC News. “Two different systems. How can that be OK?”

Davenport, 41, had a similar experience. He played seven seasons in the NFL from 2002 to 2008, most of them for the Green Bay Packers. In the years after he retired, he obtained an advanced degree and worked in education. But he says he began to experience similar symptoms, which he associated with his history head trauma. In 2019, Davenport was evaluated by Dr. Charles Golden, a Florida-based neuropsychologist who then evaluated former players for compensation through the program.

Golden determined that Davenport was cognitively impaired, and believing that race-norming was merely a recommendation, he did not apply the full demographic correction. But when Davenport applied for compensation, the NFL appealed, arguing that Davenport’s testing was “invalid” and “his neuropsychological test scores may have been calculated with improper demographic norm adjustments.”

“They said why didn't you use the Black norms?” Golden told ABC News. “And I wrote back, basically, ‘I didn't use the Black norms because I thought it was unfair to apply one set of norms to one of the player groups, another set of norms to another group of players.’”

The special masters handling the dispute, however, were dissatisfied with Golden’s reasoning, saying “significant questions remains as to what system of adjustments Dr. Golden used in assessing Mr. Davenport, and how reflective that approach is of his general practice.” They granted the appeal in part and remanded Davenport’s claim to the administrator to seek more information from Golden.

Emails obtained by ABC News suggest that Golden’s experience was not an isolated incident.

In August, a neuropsychologist who evaluated former NFL players through the concussion settlement program told colleagues that clinicians faced consequences for anything less than strict adherence to the program’s guidelines.

“My experience,” the clinician wrote, “is that when clinicians deviate from the algorithm, there are multiple inquiries levied at them.”

Another clinician responded, calling that assessment “right on target.”

“The concern for me would be taking the decision out of the clinician’s hands about whether the race variable should be used in norming regardless of the individual history,” the clinician wrote. “Should the 'premorbid functioning' of someone who completed a graduate degree and had a successful career in another field after retiring from football be assumed to be lower simply because of race?”

“I think nuanced arguments like this,” the clinician added, “and well-reasoned deviations from the standard approach are not very likely to be listened to.”

Exactly how many former players might have been denied compensation as a result of race-norming remains unclear.

The NFL has issued payouts for more than 1,200 of the more than 3,100 claims it has received to date, but the league has repeatedly rebuffed requests — including a request from ABC News — to release demographic data on program payouts, making it difficult to determine whether race-based adjustments have skewed payouts along racial lines.

Cy Smith of the law firm Zuckerman Spaeder, which represents Henry and Davenport, said his own attempts to pry the data from the league have been unsuccessful.

“We've asked the NFL … for that information, and they haven't told us,” Smith told ABC News. “We're sure that that information is out there. And we're highly confident that it will show that Black players have been disapproved at higher rates than white players. But we don't have those data yet.”

ABC News, however, was able to obtain a data analysis that suggests that the impact of the practice on payouts could be significant.

At the request of an attorney who represents several former NFL players, a neuropsychologist who has evaluated former NFL players under the concussion settlement program recently re-scored the results of cognitive tests from a group of 94 Black former players. The resulting dataset was shared exclusively with ABC News.

Nine tests were deemed “incomplete” because of “missing raw scores,” leaving a sample of 85 scores recorded by approximately 40 different clinicians between 2016 and 2020. When the clinician interpreted the test scores as if those former players had been white, 34 of them met the criteria to receive payouts through the program. When the clinician applied the recommended demographic correction to those same scores, however, only 10 of those same players qualified.

Eight former players who were initially scored at a “Level 2” neurocognitive impairment, which according to the program manual signifies “moderate dementia” with evidence of a “severe decline” in cognitive functioning, were adjusted to a “Level 0,” signifying no impairment, after the correction was applied.

An additional 13 players who were initially scored at a “Level 1.5” neurocognitive impairment, which according to the program manual signifies “early dementia” with evidence of a “moderate to severe decline” in cognitive functioning, were also adjusted to a “Level 0.”

In response to questions about the data from ABC News, an NFL spokesperson defended the practice.

“Adjustments in test scores based on age, education, race, and gender have been used by clinicians in every-day clinical neuropsychological practice, and were developed by neuropsychological experts to achieve diagnostic accuracy, many years before the settlement’s creation,” the spokesperson said. “Normative adjustments for race, in particular, were developed to correct rather than perpetrate racial bias in neuropsychological tests which, without adjustment, were misdiagnosing Black test-takers as cognitively impaired at up to three times the rate as White test-takers.”

Smith, however, offered a different takeaway.

“The NFL has embraced a racially discriminatory scheme for adjusting these test scores,” Smith told ABC News. “That's what Kevin Henry and Najeh Davenport have in common with hundreds or thousands of other Black retired players under the settlement agreement.”

A third former NFL player has since joined Henry and Davenport in challenging this process in federal court.

In October, former NFL defensive end Amon Gordon, who played for eight different teams from 2004 to 2012, reportedly appealed the denial of his application for compensation on a similar basis.

The medical literature on race norming continues to shift amid an ongoing racial reckoning across many major industries. Last year, a group of Harvard-affiliated doctors highlighted the “potential dangers” of “race-adjusted algorithms” they identified in several different medical fields in a paper published in the New England Journal of Medicine.

“When clinicians insert race into their tools, they risk interpreting racial disparities as immutable facts rather than as injustices that require intervention,” the doctors wrote. “Researchers and clinicians must distinguish between the use of race in descriptive statistics, where it plays a vital role in epidemiologic analyses, and in prescriptive clinical guidelines, where it can exacerbate inequities."

And Henry and Davenport are seeking, in addition monetary damages, a declaration that the “compelled or presumptive use of race-adjusted normative data to the detriment of Black Settlement Class members under the auspices of the Settlement Agreement is illegal under federal law.”

Henry said he’s fighting not only for former players, like himself, but for current ones.

“

That's the only reason why I'm doing this. That's going to be a group of guys that are going to come behind me. I’m coming out for them,” Henry told ABC News. “They don't think they need me, but they need me. Now. You need me. You need me speaking out because you're going to need me. You're going to need me later. They're going to do you just like they doing me.”

Dr. Leah Croll, a resident physician at NYU Langone Health and a member of the ABC Medical Unit, contributed to this report.

This report was featured in the Wednesday, Feb. 3, 2021, episode of “Start Here,” ABC News’ daily news podcast.

"Start Here" offers a straightforward look at the day's top stories in 20 minutes. Listen for free every weekday on Apple Podcasts, Google Podcasts, Spotify, the ABC News app or wherever you get your podcasts.