NFL Commissioner Roger Goodell suggested Thursday that the league could "work with the court" to consider whether "changes" to its protocols are necessary in response to questions about an ABC News investigation into alleged racial bias in the league's concussion settlement program.
In a pre-Super Bowl press conference, ESPN's Jenna Laine asked if the NFL was "looking into" allegations brought in a lawsuit by former NFL players Kevin Henry and Najeh Davenport, who have accused the league of "explicitly and deliberately" discriminating against Black players filing dementia-related claims.
Laine cited an ABC News' reporting that some clinicians who evaluate former players for eligibility for compensation through the program "actually fear discrimination is taking place."
Goodell replied that he was aware of the case and suggested the league could "work with" the U.S. District Court for the Eastern District of Pennsylvania, where the settlement is being overseen by federal judge Anita Brody, to address the concerns raised in the report.
"The federal court is overseeing the operation and implementation of that settlement, and we are not part of selecting the clinicians, the medical experts, who are making decisions on a day-to-day basis," Goodell said. "And so obviously we'll work with the court, we'll continue to see if there are changes that need to be made, but those will be determined by the court."
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 of adjusting test scores for race, widely known as "race-norming," is in use across several different medical fields as a supposed safeguard against misdiagnosis. But because these "norms," as used in a neuropsychology context, 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, 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 told ABC News. "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."
But the ABC News investigation, featured on "Nightline" on Wednesday, uncovered emails between clinicians who evaluate former NFL players for compensation through the concussion settlement program in which they contend they were all but required to apply race-based adjustment to players' cognitive test scores and express concerns that the league's protocols discriminate against Black players.
One 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."
Another suggested 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."
And another argued 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."
ABC News was also 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.