Last week, two Black former N.F.L. players raised questions about potential racial bias in how their applications for dementia claims in the concussion settlement were evaluated. Now Congress is looking into the matter.
On Wednesday, four Democratic members of Congress sent the N.F.L. a list of questions about the race-based benchmarks being used in the landmark concussion settlement to determine whether retired players who filed claims for dementia were eligible for monetary awards.
The lawmakers’ questions stem from two legal actions filed last week in federal court by two former N.F.L. players who said they had their claims denied because the benchmarks “explicitly and deliberately” discriminate against hundreds, if not thousands, of Black players who apply for payouts worth as much as $3 million.
The players want the judge overseeing the settlement to stop doctors from using the race-based benchmarks and rely on age, education levels and other metrics that would create a more precise point of comparison for the players. They also want Black players to be able to have the results of their neurocognitive exams recalculated using “race-neutral” scales to put them on an even footing with white players.
In their letter to N.F.L. Commissioner Roger Goodell, Senator Ron Wyden of Oregon, Senator Cory Booker of New Jersey, Representative Yvette Clarke of New York and Representative Maxine Waters of California asked the N.F.L. to describe how these benchmarks were developed, what efforts were being used to reduce any “embedded biases in the data” and whether the measures were peer-reviewed or examined by independent experts.
The lawmakers also asked the league to provide documentation with its responses, as well as statistics on the race of applicants for dementia claims, including what percentage of Black applicants had their dementia claims denied compared with white players. Those figures are not publicly released by the administrator of the settlement.
About two-thirds of the roughly 3,000 claims submitted by all former players have been for dementia, and about three-quarters of those claims have been denied. The separate scales for Black players and white players were not disclosed when they voted on the settlement. Instead, they are included in the confidential manual given to league-approved doctors who examine players to determine whether they are eligible for payouts for neurological and cognitive conditions including dementia.
The N.F.L. was urged “to immediately halt the use of any racially-based algorithms in the cognitive impairment evaluation until it can be determined, through a full independent review, that they do not have the effect of depriving Black players compensation they are owed,” the lawmakers wrote in their letter.
The members of Congress asked for answers to their questions no later than Oct. 2.
Last week, the N.F.L. said in a statement that the lawsuit was “entirely misguided” and that the settlement “always contemplated the use of recognized statistical techniques to account for demographic differences such as age, education and race.”
“The point of such adjustments — in contrast to the complaint’s claims — is to seek to ensure that individuals are treated fairly and compared against comparable groups.” Doctors, the league said, are not required to use any particular adjustments.
Still, the N.F.L. has appealed approved claims, arguing that doctors should have considered a player’s race when deciding whether he was eligible for a payout. For instance, the league challenged a payout to Najeh Davenport, a former running back, one of the two players who took legal action against the league last week.
But the settlement case’s special master, who rules on appeals, wrote in response to the N.F.L.’s appeal that “it is inappropriate to deny a claim solely because the clinician chose” not to use a player’s race when interpreting his test scores. The special master also cited medical experts who questioned the merits and fairness of using race when interpreting test scores.
“As using African-American-specific norms increases the rate of false negatives, there is a risk that some may be denied access to necessary benefits or compensation solely on the basis of race,” the special master wrote.
Davenport, who was joined in the lawsuit by Kevin Henry, who played eight years with the Pittsburgh Steelers, compared the use of race-based benchmarks to redlining, or the practice of denying applications of Black people seeking home loans or insurance.
“Do people think Black athletes are less than white athletes?” Davenport said. “Is that the consensus? Is that what people in the front office think?”
The senators, Wyden and Booker, are also questioning whether the racial benchmarks in the concussion settlement are consistent with other economic practices in which race is used against people of color.
The two senators and Clarke last year introduced the Algorithmic Accountability Act, which “requires companies to study and fix flawed computer algorithms that result in inaccurate, unfair, biased or discriminatory decisions impacting Americans.”
Algorithms, they wrote, help decide which job candidates will be interviewed, who will be targeted for or excluded from advertisements and the prices consumers pay for goods and shopping online.
The bill was referred to the Senate Commerce Committee, where no votes have been taken. There were 30 co-sponsors of the bill in the House of Representatives, where it was referred to the Energy and Commerce Committee.
The members of Congress noted that if the accusations of racial bias were true, they “would raise serious questions about the N.F.L.’s commitment to racial justice and compliance with the Federal law that mandates equal protection.”
They continued: “As the N.F.L., and this country, attempts to take steps to address racial injustice, the N.F.L. must make a concerted effort to evaluate the degree to which racial bias impacts these compensation determinations and move promptly to rectify it.”