The news that emerged this week is significant, and appropriate. The NFL and the retired players who filed a major class action regarding the failure to warn and protect them against head injuries have reached a revised settlement that eradicates the discriminatory practice of race-norming.
Put simply, the prior settlement incorporated a method for determining baseline cognitive function that placed Black players at a lower level than while players. This made it harder for Black players to prove cognitive impairment, since their post-football cognitive function was compared to a lower presumed starting point.
Both the league and the retired players agreed to the standards in the original settlement. A separate legal challenge, while unsuccessful in its own right, forced a reopening of the concussion settlement and a proposed deal that will result in a rescoring of cognitive tests previously taken by Black players, or possibly fresh testing.
“No race norms or race demographic estimates -- whether Black or white -- shall be used in the settlement program going forward,” the joint proposal submitted to Judge Anita Brody said, via the Associated Press.
The good news is that the two sides, who collectively dropped the ball when it came to ensuring that Black players would receive benefits untainted by racial bias, finally have done the right thing.
But that shouldn’t be the end of the story. Given the content and the attitude of the emails sent by NFL general counsel Jeff Pash to former Washington executive Bruce Allen, it’s fair to wonder whether Pash knew that a baked-in discriminatory practice would save the NFL money -- and whether he consciously embraced it.
Remember, this is the guy who referred to trying to drive down a player’s salary as “the Lord’s work.” The guy who when asked whether one percent of the players voted said he’d take the under.
The background to the settlement becomes important to understanding why and how Pash realized that the settlement contained a discriminatory term that would help the league, and whether he happily remained silent about it. The NFL initially negotiated a cap on the total expenditures for players who can prove impairment. Judge Brody then refused to approve the resolution with an absolute limit on benefits. The league agreed to remove the cap, creating potentially open-ended exposure.
On an email server somewhere, there could be comments from Pash recognizing that the presence of race-norming necessarily will limit the total payout, thereby justifying the removal of the cap.
Maybe one of those emails was sent to his e-penpal in Washington. Maybe that’s one of the emails the NFL is desperately hiding. Maybe that’s another reason for all of the 650,000 emails sent to and from Allen to be immediately disclosed.
