Players with dementia and neurological conditions including amyotrophic lateral sclerosis, or Lou Gehrig’s disease, and Parkinson’s disease can receive payouts under the settlement based on the number of years they played in the N.F.L. and their age when they were diagnosed. Cases involving diagnoses of A.L.S. have reached up to $5 million. So far, 1,176 claims, or about one-third of all applications, have been approved for payouts worth $800 million before deductions to pay lawyers, Medicare and other liens.
Claims for dementia have been rejected at far higher rates than those for Parkinson’s, A.L.S. and other conditions. Lawyers for the players blame the racially based scales that are buried not in the publicly available settlement, but in the confidential manual given to doctors who test players’ cognitive abilities. These so-called Heaton Norms, named for Robert Heaton, a neuropsychologist who helped develop them, are intended to correct for racial or ethnic differences, along with other variables such as age, education and gender.
The “norms” are essentially benchmark average scores on thinking and memory tests, and the benchmarks are lower for Black people than whites. This is intended, ostensibly, to prevent misdiagnoses.
But the science is far from settled, and the averages are based on the general population, not specialized groups like N.F.L. players, almost all of whom have attended college. In practice, this means Black players have to show steeper cognitive declines to qualify for a payout.
“The norms are appropriate for use in clinical interpretations of an individual’s performance,” said Robert Stern, a neuropsychologist and professor of neurology at the Boston University School of Medicine who raised some of these issues in a declaration submitted to the court in 2014. “But when they are used across the board in an algorithm to determine monetary compensation, it is inappropriate and results in injustice and racial inequities.”
The data also does not account for people who are biracial or for the diversity among those who identify as Black, according to researchers who have studied neuropsychological testing of Black people.
While doctors are not explicitly required to consider race when evaluating player scores on neurocognitive exams, the league has appealed cases in which Black players did not have their scores measured against a Black population and won payout for dementia.