Happy Juneteenth Day, certainly a holiday worth celebrating
In keeping with the theme, the NFL in late May agreed to settle a class action brought by two former players over the use of race norming in determining disability payments.This issue exploded into the public sphere in 2020 when African American players in the concussion settlement found they were being judged differently than their white counterparts https://www.espn.com/nfl/story/_/id/29740114/lawyers-say-nfl-concussion-settlements-discriminate-black-players.
The current settlement has to do with the league’s disability programs, not the concussion settlement, but the outcomes ultimately are similar. Three years ago two former players, Stacey Bailey and Eric Curry, filed a class action lawsuit against the NFL’s various disability programs and boards for race norming. This is when neurologists artificially give a minority a lower cognitive baseline, thereby making it harder to prove impairment.
The race norming lawsuit against the concussion settlement ultimately was dismissed for procedural reasons, but the NFL agreed to never use race information again and pledged to redo the concussion claims that had been affected.
The NFL in the disability case agreed to certify the class strictly for settlement purposes. That’s opposed to certifying a class as part of ongoing litigation. The distinction is important, as the NFL is not admitting any wrongdoing and makes clear the former players would have had tremendous difficulty certifying a class for ongoing litigation
“Defendants presented evidence that they allege shows a limited number of Neutral Physicians applied racebased demographic adjustments based on their independent clinical judgment, not pursuant to any directive from Defendants,” the NFL wrote in a court filing. “Defendants also produced evidence that upon learning of the use of race-based demographic adjustments, the Plans directed all Neutral Physicians to cease using any race-based demographic adjustments on new testing effective June 2021. Defendants maintain that race-based demographic adjustments have not been applied to Plan participants’ new neuropsychological testing since that date.”
The new settlement’s class period starts January 1, 2012 to the present. The settlement creates a system for rescoring former players’ disability rejections or the level of payments to determine if he is due compensation (if they are, the settlement will use a 6 percent interest rate for the retroactive payments.) The settlement also sets up a triumvirate of three neurologists to score the at issue claims. One is put forward by the players and one by the NFL. If they disagree on a rescoring, a third independent neurologist breaks the tie.
Plaintiffs’ Expert is Dr. Malcolm Spica; Defendants’ Expert is Dr. William Garmoe; and the Neutral Third Expert is Dr. Jason Soble.
It’s unclear how many disability claims are at issue, though there are thousands of players using the disability plans.
The settlement does not affect the case filed against the NFL’s disability programs for allegedly in general ignoring plan rules and limiting payouts. The judge in that case, Alford v The NFL Player Disability & Survivor Benefit Plan et al denied class certification, though individual cases are still being litigated.