The deal also outlines a process for reevaluating past claims for compensation.
After several months of confidential negotiations, the NFL and attorneys for former players have reached an agreement that will end the controversial practice of race-norming in the league’s landmark concussion settlement program.
The deal, which was filed under seal but obtained by ABC News on Wednesday, also outlines a process for reevaluating past claims for compensation that may have been affected by race-based adjustments to cognitive test scores, which sources familiar with the matter say could result in hundreds of millions of dollars in additional payouts to former players and their families.
According to the 46-page document, the parties agreed that “No Race Norms or Race Demographic Estimates — whether Black or White — shall be used in the Settlement Program going forward, and no party or Claimant shall have the right to appeal a Settlement Claim determination on the ground that Race Norms or Race Demographic Estimates were not applied, nor shall the failure to use Black Race Norms or Black Race Demographic Estimates be used as a basis to deny, reduce, or in any way justify the reduction or denial of a Settlement Claim.”
Going forward, the league will fund the continued work of a panel of experts developing “a set of diagnostically accurate, race neutral, long-term norms” that will ultimately replace the current method of measuring cognitive impairment in former NFL players seeking compensation. The parties will then review all claims that were impacted by the application race-based adjustments and automatically rescore those neuropsychological tests under this new method.
In the coming weeks, the federal judge overseeing the settlement is expected to review its terms and hold a public hearing to solicit questions and comments.
Reached by phone, Cy Smith, the attorney representing Kevin Henry and Najeh Davenport, Black former players who filed a lawsuit challenging the terms of the original settlement, declined to comment on details of the agreement but called it “a huge win” for Black retired players.
Christopher Seeger, the class counsel representing all former players in the settlement, also hailed the agreement as a “hard fought” victory for former players and their families.
“The agreement filed with the Court today will ensure that the NFL concussion settlement works fairly and equitably,” Seeger told ABC News through a spokesperson. “It was reached after hard fought negotiations overseen by Magistrate Judge David Strawbridge, with the guidance of a diverse group of medical experts and agreed to by the NFL and counsel for intervenors Kevin Henry and Najeh Davenport. These changes accomplish what we promised: to eliminate the consideration of race in all the settlement’s diagnostic testing and provide Black former players retesting or rescoring of claims. We look forward to presenting details of these changes to the Court, and engaging with former players about how this agreement will further the goal of providing them the care and support they deserve.”
Brad Karp, an attorney representing the NFL in the settlement, issued a statement through a spokesperson highlighting the program’s new “race-neutral evaluation process.”
“We look forward to the Court’s prompt approval of the agreement, which provides for a race-neutral evaluation process that will ensure diagnostic accuracy and fairness in the Concussion Settlement. We believe that the evaluation process contained in the agreement will have broad diagnostic applications, and welcome the opportunity to work with the greater neuropsychology community on the benefits of the cognitive evaluation process developed by the expert panel and set out in the agreement.”
Following an ABC News investigation earlier this year, which uncovered emails and data suggesting that the league’s protocols made it more difficult for Black former players to qualify for compensation, the federal judge overseeing the program ordered the NFL and attorneys for former players into mediation to “address the concerns” about the use of race-norming.
The judge later granted a petition to intervene from attorneys for two Black former players, Kevin Henry and Najeh Davenport, who had filed a lawsuit challenging the terms of the original settlement.
Both the league and the class counsel for former players initially defended the practice but ultimately reversed course and sought to reform the program in the face of mounting public pressure and scrutiny.
In an exclusive interview with ABC News in June, class counsel Seeger offered a mea culpa and an apology to Black former players who have claimed that the league’s protocols skewed payouts along racial lines.
“I was wrong,” Seeger said. “I’m really sorry that anybody, anybody, any client of mine in this program, has been made to feel that way. That is a big mistake. It was a failure of the system.”