NFL revises its position regarding "race norming"

Back in March, and later in May, I wrote about ‘race norming’ and the NFL settlement fund to compensate retired players for the effects of their concussions and other injuries.  See here.  

I am writing today because according to a proposed deal filed Wednesday in federal court, the NFL has agreed to end race-based adjustments in dementia testing that critics said made it difficult for Black retirees to qualify for awards in the $1 billion settlement of concussion claims.  NPR has the story here.

The proposal, which must still be approved by a judge, says that no race norms or race demographic estimates will be used in the settlement program going forward, but it is not clear if the players who will be affected by the new proposal will simply have their tests scored anew, or whether they will have to subject themselves to a new rounds of tests.

To date, about 2,000 players have applied for awards based on arguments of dementia, but only 30% have been approved. 

Federal judge orders NFL and players to mediation to address concern over racist methodology when calculating compensation for players - UPDATED

March 13, 2021

There are some good news and some bad news related to the lawsuit against the NFL seeking compensation for players related to concussions and other injuries.  

The good news is that the judge overseeing the litigation has ordered the parties to revise the compensation methodology to address serious concerns over "race norming" which results in lower compensation for black athletes.  The judge stated that “the Court . . . remains concerned” about the race-based formula used to measure cognitive impairment to determine eligibility for compensation.

The bad news is that the judge took the issue out of the courtroom and sent it to mediation.  As stated by the lawyer who represents some of the retired players, this means that the court's proposed solution is to order the very parties who created the discriminatory system to negotiate a fix while apparently excluding  some of the players affected by it.  

As you may know, the NFL had agreed to a settlement with retired players, but at some point later several players filed a lawsuit attacking the terms of the settlement, at least in part based on allegations of "race norming" in the process used to determine the proper compensation for players.  It is this lawsuit that the federal judge dismissed as “an improper attack on the Settlement Agreement.” 

You can read more about the story here and here.

The Nation has a good short op-ed piece on the topic here, which explains how the notion of "race norming" has changed over time.

In this story from ABC news you can also access a 11 minute video from the TV show Nightline.

 

Here is the key part of the story:

At the crux of the controversy is the fact that the NFL's concussion settlement program manual recommends the use of a "full demographic correction," in which a player's cognitive test scores are compared to average scores, or "norms," for similar demographic groups, and then adjusted to account for expected differences in age, gender, education -- and race. 

The practice of adjusting test scores for race, widely known as "race-norming," is in use across several different medical fields as a supposed safeguard against misdiagnosis. But because these "norms," as used in a neuropsychology context, assume that the average Black player starts at a lower level of cognitive functioning than the average white player at the outset of their careers, Black players need to show larger cognitive declines than white players to qualify for compensation. 

. . . . 

In response to questions from ABC News, an NFL spokesperson issued a statement in February saying that . . . "[t]he settlement seeks to provide accurate examinations to retired players," . . ."and thus permits, but does not require, independent clinicians to consider race in adjusting retired players' test scores as they would in their typical practice." 

But in email correspondence obtained by ABC News, those same clinicians appear to disagree. One bemoaned their possible complicity in a system that perpetuated "racial inequity" in payouts. 

 . . . . 

"Bottom line is that the norms do discriminate against Black players," [one] clinician wrote. "So now what? In this time of reckoning, like many professions, I think we need to look closely at the expected and unexpected ramifications of our practices." 

 And a dataset shared exclusively with ABC News suggests that race-based adjustments could have a significant impact on payouts. 

 At the request of an attorney who represents several former NFL players, a neuropsychologist who has evaluated former NFL players under the concussion settlement program recently rescored the results of cognitive tests from a group of 94 Black former players. . . . When the clinician interpreted the test scores as if those former players had been white, 34 of them met the criteria to receive payouts through the program. When the clinician applied the recommended demographic correction to those same scores, however, only 10 of those same players qualified.

 

UPDATE May 17, 2021:  Courthouse News has a new story on this topic here.

UPDATE October 21, 2021:  NFL changes its position on race norming

Court allows former NFL player lawsuit against helmet manufacturer to proceed

The First District Appellate Court of Illinois held in Nakamura v. BRG Sports, LLC that a former NFL player’s personal injury suit against his helmet manufacturer stemming from a severe concussion the player suffered was allowed to proceed. 

The decision was based only on an issue of whether the case was barred by the statute of limitations, so it will be very interesting to see how far the case goes since it is rare for sports participants to succeed in claims for injuries suffered while participating in the sport.  And given what we now know about concussions in sports like football and hockey a successful claim against a helmet manufacturer for an injury related to a concussion in a football game could open the doors to a floodgate of litigation.

Go here for more on this story.

Can Mason Rudolph (Pittsburgh Steelers quarterback) support a claim for battery against Myles Garrett?

If you are a football fan, and maybe even if you are not, you probably heard about or saw the video of a fight at the end of the game between the Cleveland Browns and the Pittsburgh Steelers a couple about a week ago.  At the end of the game, Myles Garrett (of the Browns) tore off Pittsburgh's quarterback Mason Rudolph’s helmet, and hit Rudolph in the head with it.  The NFL quickly responded by suspending Garrett for the rest of the season.  You can see the video here with the actual helmet to head contact here and here. 

Could Rudolph support a claim for battery against Garrett?

In sports cases, it is often said that players consent to conduct that would otherwise constitute battery if the conduct is inherent to the sport.  Likewise, if the claim were for negligence, it is often said that players assume the risks inherent to the sport.  For this reasons, given the violence inherent to football most of the time players can't support a claim.

But, is the risk of having an opponent rip off your helmet and use it against you like a weapon inherent to the sport of football?  I don't think so.  I think the conduct in this case is so far outside the inherent risks of the game that the quarterback should be allowed to have a cause of action.  What do you think?

Football players claim against College for injuries suffered in practice survives motion to dismiss

Two football players at Lackawanna Junior College were injured during the same tackling drill in 2010. They sued the college in 2012, claiming the football staff was negligent and the school should have had certified athletic trainers available to aid and advise players who were injured. Instead, the college employed two women who had failed to gain certification as athletic trainers.

The claims were dismissed by the trial court on the ground the players had signed a waiver.  The Superior Court reinstated the suits and now the Pennsylvania Supreme Court has affirmed that ruling.  The court noted waivers against gross negligence and recklessness were ineffective and held there were sufficient facts for the players to present the case to a jury.

You can read more (although there isn't much) about the case here.

Yet another disturbing video of football violence

Watch the defensive end of the team in the black uniform rip an opponent's helmet's off and then use it as a weapon against him.


According to NJ.com, this happened last weekend during a game between New Jersey high schools Immaculata and Linden. According to the story, the player who was hit with the helmet received 10 stitches after the game. Local police is looking into the incident.

Pac Man Jones will not be suspended for violence on the football field

Sunday I commented on the conduct of Bengals corner Adam “Pacman” Jones on the football field to illustrate the recurring issue of whether conduct while participating in sports could give rise to a claim for battery.  As an update, it is now being reported that Jones will be fined but not suspended.

More violence in football

By now I am sure you are familiar with the story about the high school football players who attacked an official in the middle of a game last week.  Well...  here is another incident.  For the second week in a row, a San Antonio-area high school is dealing with a player who hit an official in the middle of the game. Here is the video.

Not to be outdone, the pros began their season today and here is a video of Bengals player PacMan Jones ripping an opponent's helmet off and pushing the opponent's head into it after the play was over.

As in the story from last week, the torts issue is the same.  Are these incidents within the scope of the consent to the "inherent risks" of the game?  Is the conduct within the "customs" of the game?

UPDATE (9-14-15):  It sounds like PacMan Jones will not be suspended for his conduct.

Battery during football game or consent?

After just one day into the high school and college football season, we now have several examples of cheap shots and concussions to write about.  However, the most disturbing is the play in the video below which shows two players in a high school team attack a referee. The incident took place during a game at Marble Falls High School, northwest of Austin. The attacking players are from John Jay High, in San Antonio's large Northside Independent School District. Their team was losing and the referee had called at least one penalty on the team before the two players apparently decided to take matters into their own hands.



As any first semester law student knows, there are some cases that discuss the fine line between battery and contact within the customs of a sport.  In negligence language, it is often said that players assume the inherent risks of the sport.  For the same reason, so do the umpires and refs.  I don't think anyone would dispute that baseball umpires assume the risk of getting hit by balls, having runners run into them and getting yelled at or criticized by players.  These are known risks.  In football, some of the refs have to be positioned close to the plays and it is not uncommon to be pushed or run over.

However, I don't think that refs assume the risk of being intentionally attacked from behind by players.  The conduct of the players involved in this video is inexcusable.  They should be expelled from the team and if their conduct was suggested or even condoned by their coaches, they (the coaches) should be fired.  There is no place for this in sports.  Knowing what we know about concussions in football, this vicious attack on the ref could have caused him serious injury.

The Marble Falls Police Department is conducting an investigation and I will try to update this post when I hear more.

UPDATE (Sept. 7, 2015):  ESPN is reporting that the two players who attacked the ref have been suspended from the team and from school pending the investigation.  It also reported that the Austin Football Officials Association wants to make sure the two players are not allowed to play football again.  I would support that decision. Slate also has the story here.  NPR has an update here.

UPDATE (Sept. 8):  Slate is now reporting two new pieces of information:  the students are claiming the ref used a racial slur toward them and the  school district it is treating the incident as an assault on a school official, an offense that could lead to expulsion. 

The lawsuit that could be the end of pee wee football?

Here is a story about a lawsuit recently filed in federal court in Wisconsin by the mother of a young man who committed suicide.  The lawsuit claims that the plaintiff's son’s involvement in a football program for children between the ages of 11 and 14 led to traumatic brain injury that eventually sent him into a spiral of paranoia and depression, culminating in his death.  You can read the complaint here.  It reads like a protest poster against football.  In it, the complainant argues that football is not a contact sport, but a combat sport and cites a number of famous football personalities describing the violent culture of the sport.  In short, the complaint argues (using several different theories of liability) that the defendant should be liable for allowing young children to play football.

The argument is interesting, but I don't think it has a good chance. There is no question that football is a dangerous sport, but courts are reluctant to recognize claims for injuries suffered in sports as long as the injury occurs as part of the rules and customs of the game.  Also, participating in the sport is voluntary and I am sure the parents signed a waiver when they decided to sign up the child for the league.  This brings up the defenses of implied assumption of the risk and express assumption of the risk.  Finally, the defendant will probably argue that the decision to commit suicide should be seen as a superseding cause - although that may be left to the jury if it can be argued that it was an "irresistible impulse."

The article points out that the plaintiff has been "quite vocal in her position that tackle football for kids should be abolished, and she hopes that her suit will lead to exactly that result, by making the activity too expensive to carry on."  Frankly, maybe kids football should be abolished, but I am not sure that this lawsuit is the best way to achieve that goal.

Comment on the NFL concussion claims settlement

Over at Mass Tort Profs, Prof. Howie Erichson (Fordham) analyzes the NFL concussion settlement. He's not in favor.

Thanks to the TortsProf blog for the link.

Video quiz: Battery on the football field?

Players in a contact sport consent to, or assume the risks of, the inherent risks of the game and its customs.  Intentional conduct outside the rules and customs of the game, on the other hand, may give rise to a valid claim.  Here is a clip from a recent NFL game.  The play has ended; the whistles have blown it "dead."  Watch what the St. Louis defender (Ogletree) does with the ball.  Battery? 
 

Judge rejects proposed settlement in NFL case

The judge presiding over the proposed $765 million settlement between the N.F.L. and more than 4,500 retired players who sued the league and accused it of hiding the dangers of concussions has raised significant questions about whether there will be enough money for all of the payouts, medical tests and treatment.  The New York Times has the details here. (Thanks to Torts Today for the link.)

Over at Litigation and Trial, Max Kennerly has posted "Why The NFL Concussion Settlement Wasn’t Approved – And Why It Might Never Be".  In this short comment he argues that although the main reason for the rejection of the proposed settlement was the inadequacy of the settlement amount, there is another part of proposal that has not been discussed as much.  That's a clause which attempts to prevent players from conducting litigation against the NCAA and other amateur football organizations.  You can read his comment here.

Another comment on the NFL settlement

I previously posted some news and comments on the NFL settlement on the lawsuit filed by former football players and their families related to concussion injuries.  See here and here, for example.  Here is a link to a more recent comment which is very critical of the league and which laments the negative consequences of the settlement.  Here is an example of what the authors want to say:

NFL Commissioner Roger Goodell ... disingenuous portrayal of the league's concern about the health and safety of the players is incredible at best. His assertion that the league has been forthcoming with medical information as it has become available, defies credulity. Goodell's unbelievable contention that the league has acted in good faith and has not misled the players, flies in the face of reality. 

Further, they argue that the NFL promulgated reports deliberately designed to mislead the players and the public and that the settlement "was indeed a major victory for the league, but a travesty for the players."  You can read the full comment here.

NFL litigation

The most recent Coverage Opinions newsletter just came out and to celebrate the start of the football season it features an interview with Football Hall of Fame and Minnesota Supreme Court Justice Alan Page as well as a list of interesting football related cases.  You can access the newsletter here or download it directly in pdf here.

Comment on the NFL settlement in the case related to concussions

Prawfblog has a short comment on the NFL settlement.  It addresses the fact that some have criticized the settlement as inadequate and the NFL for settling the claim.  The author, however, argues that the critics misunderstand the nature of the civil tort law system.  Take a look at the comment here.

Thanks to Torts Today for the link.

NFL settles lawsuit related to concussion injuries

As you probably know by now, a few days ago the NFL agreed to settle the lawsuit filed by former football players and their families related to concussion injuries. (Go here for a comment on the case.  For more, click on the "sports" label and scroll down.) The League agreed to pay $765 million dollars to fund medical exams, concussion-related compensation, medical research for retired NFL players and their families, and litigation expenses.   While the number sounds huge, there is a serious debate whether it is adequate compensation.  I am sure you will find lots of stories and comments just by searching (or "googling") the story.  For two comments by law professors go here and here.

Judge orders NFL concussion case to mediation

The New York Times has a report here.

 

Thanks to Torts Today for the update.

 

New York Times on whether the court should dismiss the claims against the NFL

As you probably know, more than 4,000 retired players are suing the National Football League for failing to protect players from chronic risks of head injuries routinely inflicted in professional football games — and then willfully concealing those risks from players.  This week, attorneys for both sides appeared before Judge Anita Brody of Federal District Court in Philadelphia, who is considering whether the cases can proceed. The N.F.L. argued that the cases amounted to a labor dispute that the judge should dismiss. I a short editorial (available here), the New York Times makes the argument that the judge should allow the cases to proceed. For my previous posts on this case go here and here.

On football, brain injuries and tort litigation

On the eve of the Superbowl, I would like to recommend that you check out Max Kennerly's recent post at Litigation and Trial on the debate surrounding the litigation against the NFL related to retired players' brain injuries.