Class counsel in NFL concussion settlement faces ouster attempt over race-norming issue
The NFL’s concussion settlement continues to be under attack for the way that it determines the eligibility of Black players for benefits.
The practice of race-norming, which assumes a lower cognitive baseline for Black players and thus makes it harder for them to show cognitive impairment, previously sparked a lawsuit against the league. Although the lawsuit was dismissed (the decision has been appealed), a separate effort has commenced to replace Christopher Seeger as counsel for the class of former NFL players.
Seeger has become a target because he agreed to the settlement that permits the practice. Via John Kruzel of TheHill.com, a petition signed by more than 50,000 people supports Seeger’s ouster. The petition will be presented to U.S. District Judge Anita Brody.
The existence of an online petition shouldn’t matter. What should matter is the presence of law and facts that point to a decision that Seeger has become unfit to continue, due to the race-norming issue or some other defect in his representation of the class.
Former NFL player Ken Jenkins, who has not sought benefits under the concussion settlement, will deliver the petition with his wife, Amy Lewis. “This is classic systemic racism,” Jenkins said, per Kruzel. “Just because I’m Black, I wasn’t born with fewer brain cells.”
When Judge Brody dismissed the lawsuit attacking the settlement, she nevertheless said that the “remains concerned about the race-norming issue,” and she ordered the parties to discuss the matter.
The NFL continues to downplay the issue, as it has since the lawsuit was filed. However, the latest statement from the league includes this concession: “The NFL nevertheless is committed to helping find alternative testing techniques that will lead to diagnostic accuracy without employing race-based norms. As requested by the Court, the NFL is working with Class Counsel, and the parties’ respective medical experts, under the guidance of the federal magistrate judge, to that end. We understand that the Court intends to solicit the views of interested parties as part of the process.”
The problem traces to methods developed by psychologists for conducting such evaluations, and the broader question presented is whether such methods are inherently discriminatory and should be revisited.
Ultimately, the NFL’s concussion settlement could become the catalyst for addressing the underlying issue. And the situation could result in claims that the process has denied being revisited, with the possibility of the claims eventually being approved.