The NFL: There is No Such Thing as Race, but Race Must be Built into Everything, in Order to Advantage blacks, Yet Sometimes It Doesn't Work Out that Way for Every Single black, and so We Must Lie Anew

By "W"

Tue, Aug 3, 2021 2:00 a.m.

Today's wp-- race obsession

https://www.washingtonpost.com/sports/2021/08/02/race-norming-nfl-concussion-settlement/?utm_campaign=wp_post_most&utm_medium=email&utm_source=newsletter&wpisrc=nl_most&carta-url=https%3A%2F%2Fs2.washingtonpost.com%2Fcar-ln-tr%2F344d002%2F61081b709d2fda945a269d34%2F596bce3fae7e8a44e7de106a%2F9%2F70%2F61081b709d2fda945a269d34

How 'race-norming' was built into the NFL concussion settlement

The NFL and lawyers for former players blame the controversial practice on doctors. But both sides negotiated a settlement that guaranteed race would affect payouts -- and defended the practice long after concerns were raised.

CHANDLER, Ariz. — At first glance, Rick Cunningham looks almost as formidable at 54 as he did during his playing days.

As the 6-foot-7, 270-pound former offensive tackle led a visitor into his home recently, the only visible sign that eight seasons in the National Football League inflicted any lasting damage was Cunningham's deliberate gait, caused by chronic pain in knees surgically repaired nine times and hips that need replacing.

Then Cunningham tried to speak. Thoughts form in his head, he explained, but he has trouble finding the words. He stammered often, sometimes relying on his wife, Debbie, to translate. At one point, he gestured toward a pool table and explained — in a belabored, meandering way — that he couldn't remember what to call the wooden pole resting across it.

"It's a pool cue, hun," Debbie said as she gently held his arm.

When the settlement in the landmark NFL class-action concussion litigation was finalized in 2017, and the league agreed to pay sums as high as $5 million to former players diagnosed with brain diseases linked to the sport, Cunningham seemed like a strong candidate for a quick payout. A doctor had first diagnosed him with an early level of dementia in 2015, when he was just 48.

But the firm hired by the NFL and the players' lawyers to oversee settlement payouts denied Cunningham's first claim in 2018, citing a series of alleged problems with his diagnosis. His second claim was initially approved for a payment of about $700,000, but then the firm decided to audit his case, demanded more records and took nearly a year to review them before reapproving his payment in May 2020.

When Cunningham's ordeal finally seemed near an end last June, days before his payment was finalized, the NFL challenged his award. In its appeal, the NFL disputed Cunningham's diagnosis with an argument that, in part, referenced his race.

The doctor had failed to apply the appropriate "racial corrections," the league argued, to scores on several tests of Cunningham's cognitive function — a practice known in neuropsychology as "race-norming." The doctor had curved some of Cunningham's scores as if he were White. Had the doctor applied "African-American normative corrections," the NFL's lawyer argued, Cunningham would not have qualified for a payment.

In June, the NFL pledged to eliminate race-norming from the settlement payout process, an issue first brought to public attention last August by a lawsuit filed by two former players. Chris Seeger, the lead lawyer for about 20,000 former players, publicly apologized for not acting sooner, and he vowed to fight the NFL to ensure payment for every player whose claim was unfairly reduced, delayed or denied because of race-norming.

In court filings and public statements, both the NFL and Seeger have insisted doctors make the decision on whether to race-norm players' test scores.

"NFL Defendants do not make the decision as to whether racial normative adjustments are used," the league's attorney, Brad Karp, wrote in a court filing in November.

"It was definitely not required. … I don't know why [doctors] would even think it's appropriate," Seeger told ABC in June.

But the NFL and Seeger are responsible for building a settlement claims process that guaranteed race-norming would occur, making it more difficult for some Black former players to qualify for payments, and they failed to act on concerns that the practice was discriminating against Black former players as far back as 2019, a Washington Post investigation has found.

This story is based on a review of thousands of pages of confidential records from 12 players whose families and lawyers believe race-norming affected their cases and on interviews with more than 30 doctors and lawyers with knowledge of the settlement, as well as several independent experts in neuropsychology.

The Post's findings:

• Experts hired by the NFL and Seeger created a battery of tests and a confidential guidebook for doctors evaluating former players that left doctors with no option other than to use race-based norms. The guidebook directed doctors to use scoring systems that require race-norming scores on several tests. In a memo written this year and reviewed by The Post, one doctor who evaluated players wrote that the guidebook "dictates" the use of race-based norms on several tests.
• BrownGreer, the law firm hired by the NFL and Seeger to oversee settlement payouts, repeatedly issued rulings that reinforced the race-norming practice, including seven denied dementia claims reviewed by The Post in which the firm specifically cited a failure to use the correct race-based norms in the denials.
• As early as May 2019, Seeger and NFL lawyers were made aware race-norming was contributing to denials and that the practice might be discriminating against Black former players. That month, a lawyer representing one player — in a document sent to both NFL lawyers and Seeger — wrote that race-norming violated the civil rights of Black players because the practice makes "it harder for blacks to qualify for the Settlement than whites" and "is discriminatory on its face." The league and lawyers for the players didn't agree to remove the practice for another two years.

NFL Commissioner Roger Goodell and Karp, chairman of international law firm Paul, Weiss, declined interview requests. In written statements responding to a list of findings and questions from The Post, Karp insisted the decision to race-norm was ultimately made by doctors on a case-by-case basis. Doctors who think the practice was universally required are wrong, Karp wrote, and doctors had the freedom to score Black players as if they were White. But he also continued to defend the practice of race-norming and disputed claims made by former players, their lawyers, and some members of Congress that the practice is discriminatory.

"Race norms are being removed from the Settlement Program not because they have been found to make it 'harder' for Black individuals to qualify for benefits, but because the NFL believes the neuropsychological community can do better," Karp wrote.

Seeger, who has given two lengthy interviews in recent weeks about race-norming, also declined an interview request. In statements to The Post, he pointed out that some Black former players have qualified for payouts even though their doctors didn't use Black race-norms. Where the process did affect claims, Seeger maintained doctors are to blame. Separately, he accused the NFL of trying to make race-norming a requirement of the settlement.

"I am sorry for the pain this has caused Black former players and their families. While we had fought back against the NFL's efforts to mandate the use of 'race norms', we failed to appreciate the frequency in which some neuropsychologists were inappropriately applying these adjustments," Seeger said. "Ultimately, this settlement only works if former players believe in it, and my goal is to regain their trust and ensure the NFL is fully held to account."

In interviews with The Post, five doctors who collectively have evaluated hundreds of players in the settlement disputed the contention by the NFL and Seeger that the decision on whether to use race norms was up to them.

"That's just not true," said Charles Golden, a neuropsychologist and professor of psychology at Nova Southeastern University in Ft. Lauderdale, Fla. "Whenever you didn't [race-norm], and it made a difference, and the player qualified … they, BrownGreer and the NFL, went after you." The four other doctors who supported Golden's assessment spoke on the condition of anonymity, citing confidentiality agreements.

Orran Brown, founding partner of BrownGreer, declined an interview request or to answer any questions, citing the confidentiality requirements of the settlement. In a statement, he also asserted that the settlement "did not require application of the full demographic corrections."

"We hope this matter is resolved in the near future to the satisfaction of all concerned. When it is, we will apply faithfully and impartially the evaluation criteria we are directed to follow, as we do in every program we administer," Brown wrote.

Seeger and the NFL have publicly defended the settlement by emphasizing how much money has been awarded: more than $860 million to more than 1,200 former players and their families since 2017. These totals, however, say nothing about the number of denials of claims for the one diagnosis most likely to be affected by race-norming: dementia.

More than 1,000 former NFL players have submitted dementia claims that have been denied, court records show. It's unknown how many were affected by race-norming, as is the precise racial makeup of the players who are eligible to file claims. But Black players typically comprise 50 to 70 percent of the league's active rosters in recent years, according to surveys and news reports.

Revelations about race-norming have drawn fierce blowback from players and advocates, some of whom have made comparisons to eugenics and other racist pseudoscience and social science leveraged against minority groups throughout history. The controversy comes at an uncomfortable time for the NFL, which has been working to rehabilitate its public image on race issues after its handling of activist quarterback Colin Kaepernick and amid struggles to improve diversity among its head coach hirings.

"The NFL should be ashamed of itself," said Cunningham, who is tentatively scheduled to receive his payment this summer, four years after he first applied.

But the response among former players has also highlighted hostility toward Seeger, whose firm, Seeger Weiss, has collected more than $60 million for its role negotiating the settlement and managing the claims process, according to court records. When complaints about race-norming arose last August, Seeger initially said he was aware of no evidence the practice had resulted in claims wrongly denied.

"This isn't a settlement. Nobody is just getting paid money here. They are literally putting these guys through the wringer," said Jason Luckasevic, Cunningham's lawyer, who in 2011 filed the first lawsuits against the NFL, which snowballed into class-action litigation. "To think that just because they're going to fix the race-norming issue, every former NFL player dealing with brain damage will get a handout? That's just not going to happen."

Why norming happens

Race-norming is, in part, rooted in a foundational principle of neuropsychology: doctors need to consider a patient's background when determining if that patient is suffering from a brain injury or disease. Normal cognitive test scores for a healthy 85-year-old would register as impaired for a healthy 25-year-old. College graduates typically perform better on many tests of cognition than high school dropouts.

Before deciding if a patient's test scores are normal or concerning, neuropsychologists usually apply adjustments — or "norms" — to see where those scores rank that patient in a demographically similar population. To do this, they take a raw test score, the actual number of questions a patient got right, and convert it into a "T-score," which reflects how the person's performance compares with demographic peers.

Race has commonly been used in those adjustments since the 1990s, after several published papers found some minorities, including African Americans, performed worse on many common tests of cognition than White Americans. Experts who defend race-norming say the practice was intended to prevent doctors from misdiagnosing brain injury or disease in healthy Black people, and to prevent situations such as unnecessary medical treatment or involuntary confinement. It also helps account for biases in the tests themselves, some of which were developed decades ago by mostly White doctors conducting research on mostly middle-class, White populations.

[N.S.: "biases in the tests themselves..." That's a blood libel.]

Robert K. Heaton, professor of psychiatry at the University of California San Diego, collected one of the more widely used normative data sets for many common cognitive tests, and his work plays a prominent role in the NFL case. He declined to be interviewed but defended the use of race norms in emails to The Post.

"There are lots of background differences that may explain those differences in test performance" between White and Black people, including stress levels and access to food, health care and education, he wrote. "But these are extremely difficult to measure, quantify and 'correct for.' "

Other experts have expressed concerns about race-norming in medical journals, however, and noted that there are situations — such as litigation — where it puts minorities at a disadvantage from obtaining a benefit. Some normative data is outdated, experts have pointed out, and fails to accurately reflect an increasingly diverse U.S. population.

[N.S.: Irrelevant.]

NFL says it will end controversial 'race-norming' in concussion settlement with players

One of Heaton's most commonly used data sets, for example, was last updated in 2004 and only collected test results for African Americans and Caucasians. (In an email, Heaton explained that he lacked research funding at the time to collect data for other racial and ethnic groups.)

"I can see where people are coming from who say this was done with good intentions, because there is a history of overdiagnosing, overpathologizing and disenfranchising minorities in this country," said Kristen Dams-O'Connor, neuropsychologist and Director of the Brain Injury Research Center of Mount Sinai. But, she said, "race is a terrible proxy for the things that actually matter. It's a huge oversimplification."

[N.S.: Bull.]

The legal game

Chronic traumatic encephalopathy, or CTE, was just beginning to become a household term when the first lawsuits were filed in 2011. The NFL had failed to protect players from the harms of concussions, the lawsuits asserted, and concealed evidence about the long-term risks of the sport.

The case became "multidistrict litigation," or an MDL, in which hundreds or thousands of similar lawsuits are combined into one case. The federal court system sent the case to U.S. District Court in Philadelphia to be overseen by Judge Anita Brody.

When settlement talks began, two lawyers led negotiations: Karp for the NFL and Seeger for thousands of former players.

For the NFL, Karp was a natural choice. He had successfully navigated several high-profile legal threats for corporate clients, including Smith Barney, a Wall Street firm accused in the 1990s by dozens of former female employees of fostering a culture of sexual harassment, and Citigroup, accused in the 2000s of helping energy firm Enron deceive investors.

To represent the players, Seeger seemed a less obvious selection. While several attorneys had amassed hundreds of former NFL players as clients, Seeger represented only about 20.

But what Seeger lacked in clients he made up for in experience in MDLs. After several substantial victories in jury trials against pharmaceutical companies in the early 2000s, Seeger developed a specialty representing entire classes of plaintiffs in MDLs. That caught the attention of Brody, who cited Seeger's experience when she appointed him to represent all of the former players in 2012.

Seeger technically served as co-lead counsel representing the players, along with Sol Weiss, a partner at Philadelphia personal injury firm Anapol Weiss. But at a legal conference in 2018, Karp said Seeger quickly asserted himself as "the key plaintiff's counsel, the lead counsel."

Weiss declined an interview request. "Try Chris Seeger," he wrote in an email.

The settlement took effect in January 2017. In it, the NFL agreed to pay amounts ranging from $25,000 to $5 million, depending largely on age and length of NFL career, to any former player diagnosed with one of five conditions: ALS, Parkinson's, Alzheimer's, dementia and "Death with CTE."

Seeger's outsize role in crafting the settlement drew criticism from early on. In 2018, more than 20 lawyers and firms that collectively represented thousands of former players filed motions asking Brody to appoint another lawyer to serve as class counsel along with Seeger. In court filings, the lawyers accused the NFL of rigging the claims process in its favor, and they accused Seeger of not advocating forcefully enough for former players. Brody denied their motions.

Among the lawyers' criticisms: The settlement was failing to adequately compensate players dealing with dementia and CTE.

More football leads to worse CTE, scientists say. Consider NFL great Willie Wood.

To cover players living with CTE — which cannot be conclusively diagnosed until death — experts working for the NFL and Seeger had created two dementia-related diagnoses: Level 1.5 neurocognitive impairment (early dementia) and Level 2 neurocognitive impairment (moderate dementia). To qualify, players needed to provide evidence including cognitive test scores showing their brain function had declined. Working with experts, Karp and Seeger had negotiated a battery of 23 cognitive tests.

"State of the art," Seeger said of the test battery at a June 2017 meeting in Miami with former NFL players. "It's the best of the best."

At that meeting, Seeger introduced the man he had selected to act as a referee of sorts: Orran Brown, whose Richmond-based law firm, BrownGreer, specializes in overseeing the payouts of settlements in complex litigation.

"Orran Brown and I have worked together on other cases. ... He is the best of the best also," Seeger said. Recently, the two had worked together on a $4.85 billion settlement with Merck over its pain reliever Vioxx, suspected of causing strokes and heart attacks in thousands of patients.

Working with review doctors selected by the NFL and Seeger, Brown explained, his firm would review every claim and determine if it merited payout. The NFL, Seeger and lawyers for individual players had the right to appeal to special masters — essentially arbitrators appointed by Brody — who would rule on disputes over whether players qualified.

The night he was introduced to former players, Brown tried to dispel any concerns that he and his employees would favor the NFL, which paid the firm's bills.

"We work for the people who deserve to get benefits from this program … We do not take orders from the NFL; we do not take orders from class counsel. This settlement agreement is our playbook," Brown said as he picked up a hefty binder from a nearby chair.