All in Their Heads: Sport Activism and the Fight Against Race Norming in the NFL Concussion Settlement

Lucia Trimbur

Athletic Activism

ISBN: 978-1-80262-204-1, eISBN: 978-1-80262-203-4

ISSN: 1476-2854

Publication date: 8 August 2023

Abstract

This chapter analyzes the campaign against race norming in the 2013 National Football League (NFL) concussion settlement that caregivers of retired players designed, and it considers how their collective action throws new light on activism in sport. While there is a substantial literature on how individual athletes engage in protest, less work has focused on how families – partners, children, siblings, and parents – of athletes organize as a group to answer back to anti-Black racism in professional sport. I argue that a group of spouses used their position as caregivers to shame the NFL, the presiding judge of the settlement, Class Counsel, and even the Department of Justice into acknowledging not only individual suffering from traumatic brain injury but also of the distribution of that suffering across households. Specifically, the wives group expanded definitions of risk and damage to include not only individual illness but also family and group suffering and demanded inclusion of gendered and racialized aspects of social care. Through their campaign, the group recast what is considered protest in the world of sport and who has the ability to access an activist subjectivity.

Keywords

Citation

Trimbur, L. (2023), "All in Their Heads: Sport Activism and the Fight Against Race Norming in the NFL Concussion Settlement", Montez de Oca, J. and Thangaraj, S. (Ed.) Athletic Activism (Research in the Sociology of Sport, Vol. 17), Emerald Publishing Limited, Leeds, pp. 105-122. https://doi.org/10.1108/S1476-285420230000017007

Publisher

:

Emerald Publishing Limited

Copyright © 2023 Lucia Trimbur. Published under exclusive licence by Emerald Publishing Limited


Raw scores are noisy.

–Special Masters David A. Hoffman and Wendell E. Pritchet ()

Even more painful when the wives do make the connection [between football and CTE] but the husbands don’t. CTE has lots of victims.

–Dawn Neufield, wife of former NFL player ()

Introduction

On its website, PAR Inc., a prominent publisher of psychological assessment materials, advertises kits, manuals, and software for the Revised Comprehensive Norms for an Expanded Halstead-Reitan Battery: Demographically Adjusted Neuropsychological Norms for African American and Caucasian Adults system (). PAR promises that the norms, developed by Robert Heaton and colleagues in 1991 and revised in 2004, improve neurodiagnostic precision by adjusting demographic variables, such as age, education, gender, and race, which, the website argues, greatly affect test performance. Specifically, the norms convert raw scores to a common metric, which PAR states, is “important when you need to compare an individual's test results with normal expectations based on that person's demographic characteristics.” The company, started by a psychiatrist and psychiatric nurse team in their Florida home in 1978, sells its products for between $100 and $900 ().

What may appear at first glance to be a standard marketing ploy is, in fact, the description of a controversial practice in neuropsychological evaluation called race norming. Based on the theory that the standard, baseline cognitive abilities of Black people are lower than that of white people, race norming involves adjusting the scores of Black test-takers. Coded in PAR's language of “accuracy,” “improvement,” and “performance” are assumptions that “race” is knowable and immutable, can be metamorphosed into a statistical variable that is clinically and diagnostically meaningful, and that that statistical variable should be modified if the patient is identified as nonwhite.

The Revised Comprehensive Norms, also known as the Heaton norms, generated debate that was largely confined to the field of neuropsychology until retired professional American football players learned that the norms were being used in the National Football League (NFL)'s landmark 2013 concussion settlement, which provided compensation to former athletes who sustained traumatic brain injuries (TBIs) and developed debilitating neurological diseases from their work (). The Heaton norms were introduced into the program in 2017, two years after the Settlement Agreement was finalized. Both the NFL and Class Counsel Chris Seeger of Seeger Weiss, LLP, the firm appointed by the court to represent 20,000 retired players in the class action lawsuit, agreed on the norms' use (). Class members, however, were never notified about their application and the settlement program manual that detailed how the adjustments worked was kept confidential, unavailable to former players.

Race norming dramatically changed the neurocognitive test scores of Black claimants and thereby affected monetary awards. Retired defensive lineman Kevin Henry, for example, underwent two evaluations and generated two sets of scores; his first was not race normed and he was found to suffer serious cognitive decline. The NFL denied his claim and required the adjustment, and when his score was modified using the Heaton norms, less cognitive impairment was determined, and less compensation received. Former running back Najeh Davenport's first round of testing also qualified him for damages. The NFL appealed his award arguing for race norming, and when his scores were adjusted his cognitive deterioration was deemed insufficient for any benefits.

Henry and Davenport filed a lawsuit against the NFL on August 25, 2020, in the US District Court for the Eastern District of Pennsylvania, arguing that the diagnostic tests used to determine cognitive damage in the NFL Settlement Agreement were discriminatory. Soon after additional motions were filed in support of the suit. The NFL denied any wrongdoing and called the suit “entirely misguided” with corroboration from Class Counsel Chris Seeger, who assured the very people he had been appointed to protect that his firm had “investigated this issue” and “not seen any evidence of racial bias in the settlement program” (). The case began winding its way through the courts.

As the NFL dug in, primary caregivers – wives, partners, girlfriends – of former players whose scores either had been or were likely to be adjusted by race grew frustrated with the legal proceedings. Living on the front lines of dementia and other neurocognitive diseases, players' families knew better than anyone the realities of both their partners' struggles and their own, which were drastically shaped by the NFL's denial of the relationship among concussive hits, TBI, and cognitive damage until 2016. They decided to organize.

This chapter analyzes the campaign against race norming that caregivers of retired NFL players designed and considers how their collective action throws new light on activism in sport, expanding its possible meanings. While there is a substantial literature on how individual athletes engage in protest, less work has focused on how families – partners, children, siblings, and parents – of athletes organize as a group to answer back to anti-Black racism in professional sport. I argue that a group of spouses alternately calling themselves the “Women of the NFL,” “NFL Wives for Change,” and “the wives group” used their position as caregivers to shame the NFL, the presiding judge of the settlement, Class Counsel, and even the Department of Justice into acknowledging not only individual suffering from TBI but also of the distribution of that suffering across households. Specifically, the wives group expanded definitions of risk and damage to include not only individual illness but also family and group suffering and demanded inclusion of gendered and racialized aspects of social care. Through their campaign, the group recast what is considered protest in the world of sport and who has the ability to access an activist subjectivity.

Race Norming and the Settlement Agreement

The Practice of Race Norming

Race norming, also known as race correction, is a practice in medicine that adjusts values for health, organ function, and aptitude by perceptions of racial difference. It is performed in two ways, depending on the medical specialty/subspecialty and that specialty's history. Rather than using one standard for all patients, patients identified by clinicians as Black either (1) have values modified compared to a white norm or (2) are evaluated by a different standard all together (i.e., “population”). In nephrology, a multiplication factor is applied to Black patients using the kidney function values of people identified as white as the norm. In pulmonology, race correction also applies a multiplication factor to the reference-values of white populations. In urology, the tool for assessing childhood urinary track infections – the UTI calculator – applies a 2.5 times greater risk for white children than for “fully or partially Black” children. And in neuropsychological testing, Black examinees' raw scores (number of correct responses) are changed to “T-scores” based on the mean of a reference population (i.e., Black), hence using two different standards.

The bases and justifications for race correction can be rooted in racialized understandings of genetics as well as essentialized understandings of social and cultural difference. In pulmonology, racial difference is constructed as genetic. In her book Breathing Race into the Machine: The Surprising Career of the Spirometer from Plantation to Genetics, Lundy Braun chronicles the origins of the race correction in lung-function testing and starts with Thomas Jefferson's Notes on the State of Virginia, in which he argues for “a different structure in the pulmonary apparatus” in Black and white bodies. His 1787 idea of a “different structure” became integrated into the spirometer, the instrument used to measure lung capacity ().

In neurocognitive assessment, racial difference is constructed as a product of social and cultural environment. Creators of the Heaton norms argue they developed the adjustments to prevent racial bias in neurological examinations. Black men and women, they contend, grow up with fewer resources, more hardship, and in substandard educational systems. As a result, they perform worse on cognitive tests than their white counterparts. They explain,

[T]he noted ethnic differences in test performance are reliably observed and, although they may not accurately reflect differences in the ultimate potential of the examinees, they should be considered when interpreting cognitive tests within a neurodiagnostic context. Failure to do so typically results in a substantial (sometimes up to three-fold) increase in the probability of misclassifying normal African Americans as having brain disorders, as compared to misclassification rates.

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The norms, then, use “race” as a proxy for possible socioeconomic and educational inequality. The norms assume that all test-takers who are identified by the examiner as Black have grown up in households with modest resources; that they have been educated in inferior educational institutions; and that both modest resources and educational inequality reduce the overall cognitive ability of Black examinees.

Whether justified by genetics or sociocultural background, adjustments by “race” are predicated on the idea that fixed or unchangeable racial differences exist, that races are homogeneous groups, and that races can be transmogrified to statistical variables. And the effects of this thinking are significant at both the individual and population level. Race correction can mean the difference between a patient receiving a kidney transplant or living a life on dialysis. It can shape diagnosis of lung disease and determine treatment plans, access to disability benefits, and the possibility of a livelihood. And it can dictate who is eligible for a VBAC – vaginal birth after cesarian – and who is instead consigned to surgical intervention. In the NFL concussion settlement, the number of class members whose scores have been race normed is not yet known, but as the class is over 20,000 people and the league is roughly 70% nonwhite, the number will likely be substantial.

Race Norming in the Settlement Agreement

Questions about race norming in the settlement were raised as early as 2018, but the practice became national news in late August of 2020 when Kevin Henry and Najeh Davenport filed a lawsuit against the NFL in the US District Court for the Eastern District of Pennsylvania (). Henry and Davenport alleged that by using “a formula… for identifying qualifying diagnoses,” the settlement discriminated on the basis of race. The plaintiffs argued that the NFL required the scores of Black claimants to be adjusted by race and that such “actions were designed to, and did, make it far more difficult for Black retirees to receive benefits for the brain injuries.” More perniciously, they asserted, the NFL's insistence on race norming relegated Black claimants to second-class citizenship, presumed their intellectual inferiority to white claimants, and was used to render invisible the cognitive damage the sport was responsible for in the first place.

The Settlement Agreement provides monetary awards for amyotrophic lateral sclerosis (ALS), also known as Lou Gehrig's disease, Parkinson's disease, Alzheimer's disease, moderate dementia (what the settlement calls “Level 2 Neurocognitive Impairment”), and early dementia (“Level 1.5 Neurocognitive Impairment”). The agreement also awarded compensation for retired players who died with chronic traumatic encephalopathy (CTE) before April 22, 2015 (). All diagnoses except CTE are affected by race norming.

The case hit the news but did not stay. Many journalists were not familiar with race correction and the science both supporting and debunking the practice was confusing. Athletes and fans found such a racist statistical exercise almost unbelievable or did not care at all. Politicians asked questions but when the NFL refused to answer, they did not follow up. And the country was in the midst of the COVID-19 pandemic and highly anxious about a poorly understood virus that changed life by the day. In March 2021, seven months after the Henry Davenport case was filed and out of the spotlight, Judge Anita Brody dismissed it, calling it an “improper collateral attack” on the Settlement Agreement. However, Brody did acknowledge that race norming was troubling and took the unusual step of ordering the NFL and Class Counsel Seeger Weiss to appear before a magistrate judge to reach a new agreement on the practice.

Henry, Davenport, and other claimants motioned to be included in the mediation, but the NFL and Class Counsel Chris Seeger filed their opposition to any outside party's participation. After several months, Judge Brody allowed Henry and Davenport to join the deliberations but rejected other similarly situated class members and required all negotiations be kept confidential. As the NFL scored victory after victory seemingly with the help of Class Counsel, the caregivers of retired players decided to act ().

Activism and NFL Wives for Change

Even before race norming hit the news, the concussion settlement was in crisis with rampant fraud, unexplained denials, unusually high numbers of audits, and chronic delays plaguing the program (). As early as March 2020, “Women of the Retired and Disabled NFL” with the handle “@Women of the NFL” opened a Twitter account dedicated to “standing together to love, care, & strive to be a voice to the ones who need our support” (). The group gave both information and encouragement to retired players and their caregivers struggling with medical and mental health issues and the settlement's labyrinthine claims process. And with a regular Twitter presence, the account became a centralized place where people could share experiences and counsel each other. In April 2020, a retired NFL player tweeted to the group, “Reading every story that you guys go thru is like looking myself in the mirror. Thank God for our spouses, no way I could do this alone.” Another offered guidance,

Advice to all NFL players, Make the medical staff document every injury you sustain. Don’t brush over anything. The tough guy, warrior shit is gonna have you denied from LOD, Workers Comp, etc down the road when you’re out of the league and need assistance the most.

The wife of a former NFL player vented, “He's a Stanford grad, & he can't even use his brain to do anything w/that kind of education. And not a dime from the NFL so far. Not a dime. They fought us. And I'll tell you, his condition became so much worse in the last 4 years of fighting the NFL.” Throughout the campaign, the account remained a consistent site where people struggling with football-related health problems, especially TBI, could share, critique, comfort, and console.

In its early months, Women of the NFL/Women of the Retired and Disabled NFL tweeted about multiple football-related issues, but when news of race norming in the settlement broke, they turned almost exclusively to the practice. They informed former players of race correction's use in the settlement program, updated retirees and their families on the Henry Davenport legal case, supported people who expressed disbelief and frustration, and linked race correction in medicine to other forms of anti-Black racism. Roxanne “Roxy” Gordon (nee McCray), wife of Amon Gordon, who was battling his own case against the settlement, partnered with other wives of retired players and sports activist Sheilla Dingus at the nonprofit Advocacy for Fairness in Sport to form “NFL Wives for Change.” In February 2021, the group started holding ZOOM meetings to discuss race correction in pending litigation, to take on more and more actions, and to understand themselves as a group (). The tactics of the NFL Wives for Change evolved through the different stages of the lawsuit, but their overarching strategy remained the same: get and keep race norming in the spotlight, demand its abolishment, and influence the climate of opinion in their favor.

Building a Base and Soliciting Support

The NFL Wives for Change, also called the wives group, built its base both among people directly affected by the Settlement Agreement's secret policies – retired players and their families – and among other interested social actors – journalists, academics, policymakers, and civil rights lawyers, who were in positions to amplify the anguish of race norming's lived experience. Assembling the base consisted primarily of grassroots literacy (; ), explaining the existence, science, sociology, legalities, and financial implications of race correction, both in the case and in medicine. It was a complicated task and even the most unflappable onlooker was not only appalled but also shocked as they learned about the practice. Prominent sports columnist Kevin Blackistone of The Washington Post encapsulated emerging popular opinion when he argued on MSNBC, “… [I]t just boggles the mind… When you see this complaint, this lawsuit, and how the NFL stood to appeal it, you realize just what a racist policy this is… This is on the eugenics level… This is crazy” (). While educating interested social actors, the wives group provided emotional support for the many families struggling with claims administrators, settlement fund requirements, and the decisions of special masters, who examined appeals.

As the group grew, it expanded its tactics, first targeting Judge Anita Brody, the judge in charge of the settlement and attempting to enter the legal record. The day that Brody dismissed the Henry Davenport suit, the group responded with a letter protesting her decision. The missive was the first of several that the group wrote over the course of their campaign. And though their requests would change over time, they consistently used the genre to demand a voice in the legal deliberations. The March 2021 letter was written by Dr Amy Lewis, wife of Kenneth Jenkins, a former NFL running back, signed by 15 spouses, and warned Judge Brody that she had handed “the fox another chance to guard the hen house.” The NFL Wives for Change also objected to the judge's dismissal of black players' and their wives' perspectives by preventing discovery (i.e., allowing them to present their own evidence). And they expressed a lack of confidence that mediation would yield anything resembling justice, so they informed Judge Brody of their intention to ask both the Department of Justice and Congress to investigate civil rights violations and possible collusion between the NFL and Class Counsel Seeger Weiss. They concluded by requesting their letter be placed on the docket.

Dictating Demands

Judge Brody's March 2021 order to dismiss the Henry Davenport case emboldened the group and while they continued to address the judge directly, they solicited broader support from the public. In May 2021 Dr Amy Lewis delivered a petition on behalf of the group to Judge Brody with 54, 549 signatures. The petition formally made three requests that would become the backbone of their campaign and was repeated by the wives group in television interviews, tweets, posts, and news articles.

First, the petition requested that race norming in the settlement be halted immediately. Contradicting the NFL's argument that physicians could elect not to race correct, the petition referenced clinicians who had publicly stated they had been required to. The group also asked that the NFL provide demographic data on claimants who had passed eligibility requirements, citing concerns that adjustments skewed success in favor of white claimants. Second, the petition requested that Chris Seeger be removed as the lawyer of record. Seeger, they argued, had agreed to race norming and failed to protect his clients or even inform them (or their representatives) of the practice. The petition expressed misgivings about his ability to negotiate on behalf of players of color, and having already received over $100 million from the settlement, he had been handsomely rewarded as claimants suffered. Third, the petition requested an impartial lawyer be appointed to fairly represent the needs of class members.

And finally, as they would do over the course of their campaign, the NFL Wives for Change asked that the petition be entered into the legal record. The petition's cover letter requested Judge Brody “make this [cover letter] and the national petition a public document, on the record, and place all on the docket” (). Lewis later tweeted the letter and petition tagging prominent politicians, such as Senator Cory Booker, Speaker of the House Nancy Pelosi, and Vice President Kamala Harris; the media, such as CNN, ABC, CBS, and the Today Show; and sports entities, such as Lebron James, the NFL, and the NFL Players Association (NFLPA).

The group then expanded its digital communications. In June 2021 they circulated video testimonials featuring retired players, famous and not, telling their stories, asking for support, or standing in solidarity with other claimants who had been affected by race norming. The first, by James Owens, who played six seasons as a running back in the NFL, featured a simple and sobering eight-second acknowledgment: “Hi, I'm James Owens and I was race normed in the NFL concussion settlement” (). The next appealed more directly for support,

Hello! My name is Wesley Walker former all pro wide receiver for the New York Jets. I played 13 years and I’ve suffered many injuries. I’m supporting all former NFL players who have suffered traumatic brain injuries. Please stand with us against the race norming practices that are associated with the inequities of black and brown retired former players. Thank you very much for your support.

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In the third clip Bobby Jackson explained, “Hi. My name is Bobby Jackson and I played in the National Football League for nine years, from 1978 to 1986. I suffer from TBI due to repeated head injury. I am a victim of race norming in the NFL concussion settlement” (). Other former players such as Kenneth Jenkins, Richard Dent, Amon Gordon, Louis Leonard, Evan Oglesby, and Anthony Howard echoed their stories. DeEtta M. Jones, a strategist, activist, and consultant as well as wife of Dent, posted the videos on TikTok insisting “The NFL needs to do better. #EndRaceNorming. Hear their voices. Listen to their stories. Share awareness. Our Black players deserve better” ().

The NFL Wives for Change invited solidarity from white players, creating an interracial coalition of advocates. Testimonials from players such as Brian Noble highlighted that the fight to abolish race norming was not about racial division but about protecting all players. Noble explained,

I’m Brian Noble. I spent nine years in the National Football League as a middle linebacker and because of that, I’m suffering from traumatic brain injury. I support these men in their fight for the injustice in the NFL’s concussion settlement case. The shield was supposed to be a brotherhood not one based on color. Please support these men in their fight for justice.

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As soon as Noble's clip was posted, Roxy Gordon quickly responded, “Thank you Brian and @gr8mimicindy [Noble's wife]. The shield is not about black or white it's about brotherhood.” Several months later, Gordon tweeted to a former player who was struggling, “we are cheering for you and your NFL brothers of all races!” (). References to the importance of the NFL shield, the league's logo, and the irrelevance of racial background would be repeated throughout the campaign.

The NFL Wives for Change's tactics worked. Just under a year after the Henry Davenport suit was filed, and after months of appealing to the court, the media, politicians, and other interested social actors, the group had successfully circulated their story. Major news channels ran hard-hitting feature stories. Daily newspapers did investigative reporting and delivered heart-wrenching in-depth pieces. Louis and Lacey Leonard's case, for example, was both devastating and representative. At 36, Louis Leonard, who played defensive tackle in the NFL for five seasons, suffered a host of serious medical problems that required upwards of 100 doctors' visits a year. His wife Lacey quit her job to ferry Leonard to his many appointments and keep track of his overall health as his memory failed. She explained, “I went from being a full-time working mom to having to reduce my hours at work because I was finding myself really needing to be there at the appointments so I can have a better understanding of what Louis is going through” (). At 33 years old, Leonard had been diagnosed by two doctors with moderate dementia and approved for nearly $2 million in compensation. When the NFL appealed, the claims auditor reversed the decision. On ABC's Nightline, Lacey argued, “There's no doubt in my mind that if he didn't have this skin, he would have received his award, his claim” ().

The fight against race correction had gained traction and, importantly, the NFL Wives for Change was able to explain the trials of everyday life and the effects of race norming on their husbands and families. On June 3, 2021, as ABC News prepared to run another damning story, the NFL agreed to eliminate the practice in the settlement program. The wives group had kept the issue of race norming in the public eye for almost a year, demanded its abolishment, and influenced the climate of opinion in their favor.

Escalating Pressure

The campaign was nowhere near over. The NFL had agreed to stop race correction, but serious concerns remained about the process moving forward, the reevaluations of past claims, the conduct of Seeger Weiss, possible collusion between Class Counsel and the NFL, and larger civil rights violations. The group knew that to achieve any semblance of justice, they had to connect discrimination in the sporting world to larger society (). Accordingly, the group shifted its focus to lobbying secondary targets who could exert pressure on primary ones. Frustrated by gag rules, documents under seal, motion dismissals, and confidential materials, the NFL Wives for Change lodged a complaint with Fix the Court, a 501(c) (3) organization that works to make the federal courts more open and accountable. In late July 2021 Sheilla Dingus filed a grievance about possible misconduct by Judge Anita Brody, and the Women of the NFL tweeted “Please support our fight for justice. Retired players with brain damage are being railroaded by the @PhilaCourts Eastern of Pennsylvania courts, and misdiagnosed by #NFL hired doctors! @TheJusticeDept @KristenClarkeJD @RichMcHugh @Pamadden @AmyLewisHealth.”

A month later, the group began lobbying the Department of Justice, delivering a letter in person to the Civil Rights Division addressed to Assistant Attorney General Clarke. For the first time, the group issued a press release on NFL Wives for Change letterhead in advance, informing the media of their action. Their release took aim at Class Counsel Chris Seeger, and in bold and italics, they emphasized,

Class Counsel Christopher Seeger has been aware of the use of race-norms for at least two years following an appeal in 2019 that quietly in off-docket filings exposed the Civil Rights violations taking place, but Seeger denied that there was a problem through as late as March 2021.

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The release ended by explaining that the NFL Wives for Change “was organized by a group of wives of former players, many of whom are caregivers to their husbands” and provided Dr Amy Lewis as a contact ().

The letter was a rhetorical masterpiece in its analysis and critique. Signed by over 40 spouses and “on behalf of many wives of former NFL players,” the text contained three pages of single-spaced condemnation substantiated with secondary documents. The group detailed the settlement's violations of process, transparency, and conduct and concentrated on the primary decision-makers in the case – Chris Seeger, the NFL, and Judge Anita Brody.

Chris Seeger, they argued, was chosen in a “highly irregular manner” working as one attorney in a settlement of over 20,000 class members. He had refused to give potential claimants – primarily Black – the opportunity to participate in the process or share their experiences. With few of his own original clients pursuing settlements, the group worried that he was less concerned about successful claims than financial gain. Further, as Seeger had at the very least approved race correction in the program, he was in a poor position to remedy the racist diagnostic process. Worse, it was probable that Seeger had colluded in secret with the NFL to add race norming to the settlement two years after finalization to save money for the league, which was being sued by its insurers ().

The letter charged the NFL with ignoring elected officials about civil right violations, engaging in collusion with Class Counsel, and blatantly discriminating against retired Black players to protect its massive resources. It indicted the NFL for falsely denying the existence of race norming until just before it was pressured to end its use in the settlement. Though it was no longer feasible to refute the practice's entrenchment in the program, the NFL still refused to address how the practice came about or why it was “applied purposefully and unconstitutionally to discriminate against Black players.” Allowing the NFL to design a new diagnostic process constituted a clear conflict of interest. And the only way to address the growing lack of trust among claimants of all racial and ethnic backgrounds was to create an impartial team with a diverse range of voices, who would reexamine the entire claims process and develop additional reparations.

For her part, Judge Anita Brody had allowed the above transgressions to thrive in her court. She had fostered secrecy, refused opportunities for discovery, and silenced the voices of pro se movants. She had refused to investigate civil rights violations, concerning herself more with protecting the terms of the Settlement Agreement than claimants' constitutional rights. And she had repeatedly failed to respond to requests from retired players and the NFL Wives for Change.

In October 2021, a settlement was reached and placed under seal. The NFL Wives for Change continued their work by pressuring Congress and the Department of Justice to investigate civil rights violations. In December 2021, they tweeted “CONGRESS & DOJ we need your help! Too many are dying we need the entire #NFL Concussion Settlement investigated and restructured. We need Congressional Oversight of the NFL's practices as they relate to concussion damage and the men who are suffering from CTE. @KristenClarkeJD” (). A month later they sent their last letter to Judge Brody.

In January 2022, as Brody considered approval of the proposed plan, the NFL Wives for Change, which now included 75 wives and one daughter, wrote to weigh in. The group applauded the agreement, evaluating it as a “good first step for many former players.” But they still had concerns. Echoing earlier apprehensions about Chris Seeger's competence, the group suggested again that a more diverse team would produce better results. Further, they worried that former players were not aware of the new agreement. They wrote,

It is vital that new and continuous efforts be made to reach these former NFL players. It is tragic when a player or his family could have received benefits and we only find out that the player was suffering because he received a CTE diagnosis post-mortem.

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Judge Brody approved the agreement on March 4, 2022. Several days later, the Department of Justice denied NFL Wives for Change's request for a civil rights investigation.

Evaluating Wins and Losses

With the settlement approved and the Justice Department unlikely to probe claims of racial discrimination, the Wives of the NFL's campaign looked to their next step. They had succeeded in the court of public opinion. In the comments section of an Athletic article on Brody's March 4, 2022, decision, “Mike H” summarized most people's position, “The biggest story to never get enough attention. The NFL on the whole is an absolute hypocritical disgrace. I often despise myself for watching it. I love the games. But the league is as despicable as any other oligarchical regime” (). Other commenters echoed his critique.

And though it was not how the NFL Wives for Change had intended, they had also succeeded in getting lawmakers to comment on race norming. In June 2022, during a House Oversight and Reform Committee meeting about workplace conduct in the Washington Commanders organization, Republican Representative Burgess Owens excoriated Commissioner Roger Goodell:

What’s truly racist is this condescending soft bigotry of low expectations that has for too long plagued my community. It was prevalent when I entered the NFL in 1973, where it was understood that certain positions were reserved for Whites only… In June 2021, the NFL was forced to announce that it was ending its practice of “race norming” when paying out compensation for players experiencing brain damage due to concussions on the field. The NFL had for years used separate tests based on race to score the players' cognitive threshold… As a result of this practice, the NFL compensated injured black football players and their families less than white players and their families. To say that black players should be judged by a lower standard of brain function than their white teammates are, without question, a perfect example of real racism…With all due respect, Commissioner, you are at the helm of an industry, whose culture once unified us – both fans and players. Sadly, that is no longer the case. I hope one day soon, the NFL once again becomes a force that unites us rather than divides us. I look forward to continuing this conversation in the months ahead.

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Owens was the only former player given the chance to address Goodell directly about race norming on the record. But in doing so, race correction had been denounced in Congress.

Possibly most importantly, the NFL Wives for Change inspired the creation of a permanent organization to educate retired athletes and their families about the concussion settlement and keep them up to date on the ever-changing landscape. In October 2022, the NFL Concussion Settlement Player Advocacy Committee (PACNFLINFO) announced its mission as “a transparent and factual information hub for former NFL players and their families to be successful in applying for Concussion benefits. Our secondary purpose is to educate the public about #CTE, #TBI and the truth behind the #NFL's denial of life-changing injuries to their player” (). The organization holds meetings, provides information, raises awareness, and answers questions. In October 2022, PACNFLINFO held its first ZOOM meeting for players, family, and legal representatives and featured Class Counsel Seeger Weiss, Justin Wyatt, an attorney with expertise in the concussion settlement, and PACNFLINO representative Ken Jenkins to explain the new concussion settlement. In November 2022, the group held a ZOOM meeting for attorneys currently representing former players. The NFL Concussion Settlement Player Advocacy Committee maintains a website, is active on Twitter has a Facebook page, and answers questions through email.

Conclusion: NFL Wives for Change and Sport Activism

When retired NFL players, who were so brutalized on the field that they developed dementia in their early 30s, could no longer fight for themselves, their partners organized. The NFL Wives for Change sought to rescue thousands of men from the disposability to which the NFL had condemned them. By using their position as caregivers, they documented, firsthand, the lived experience of race norming and advocated for a different future. They understood that the most visible way to show how risk and damage are distributed is by demonstrating how disruptive the practice of race correction is to the integrity of the family unit.

The NFL Wives for Change strategically deployed normative categories – family, gender, identity – and hierarchies of power – heteronormativity and patriarchy – to protest and try to eliminate racial discrimination in the settlement. Implicit in their activism was the claim that by using race correction and denying the claims of Black former players, the NFL had threatened the structure of the family: wives were prevented from being wives, husbands from being part of the family, and children from the two-parent households to which they were entitled. The NFL's use of race norming also threatened dominant constructions of masculinity and identity formation. No longer available as breadwinners, retired players were relegated to the passive role of infirm dependent, reliant on the multiple forms of labor their spouses performed. And the NFL compromised the community of men who had worked and developed identities side-by-side by dividing Black players from white. By treating players differently, the NFL jeopardized the integrity of the shield, the interracial brotherhood of men who played professional American football together.

The NFL Wives for Change did not object to the existence of American football, the mission of the NFL, or even the shockingly high numbers of players with TBI. It accepted the football state within the state and its attendant relations of power as commonsensical. But the NFL Wives for Change's caretaker activism used the resources available to them and challenged how the sport and its governing body functioned.

And race norming in the NFL concussion settlement would likely have continued without their activism. The bizarre convergence of power among the NFL, the ethically questionable Class Counsel, and, at best, a conflict-averse judge provided a formidable adversary that remained nearly impenetrable. Until the very end of the case, the NFL maintained it had not racially discriminated against any former players of color, emailing The Washington Post “Race norms are being removed from the Settlement Program not because they have been found to make it ‘harder’ for Black individuals to qualify for benefits, but because the NFL believes the neuropsychological community can do better” (). In the quote, the NFL is characteristically hedging, but the league has had to answer for its implementation of race correction. Before the wives group began their campaign, very few people had heard of the practice. Part of the NFL Wives for Change legacy is that they made race norming into a public issue that stayed in the public eye.

In the world of sport, the NFL Wives for Change's activism departs from conventional understandings. They are not John Carlos and Tommie Smith raising a fist on the Olympic medal podium or Colin Kaepernick taking a knee while the national anthem plays. They are not Akim Aliu, Althea Gibson, Arthur Ashe, Billie Jean King, Jackie Robinson, Kareem Abdul-Jabbar, Muhammad Ali, Naomi Osaka, Roberto Clemente, or Wilma Rudolph, whose individual actions shook the foundations of sport and of society. In the case of the NFL Wives for Change, there are no heroic, historic, or iconic gestures on which to focus and the results of their campaign are more ambiguous.

But the work of the NFL Wives for Change is activism. And their activism allows us to see protest and social change in unsuspected places. Their campaign reveals the possibilities of the collective in the world of sport and illuminates how standing together even against an opponent as intimidating as the NFL allows for more participation and yields greater change. Collective action is far less exciting but no less powerful or long-lasting. In the case of race norming in the NFL, there is no going back on public attention now. Race norming is on the docket of consciousness in the climate of public opinion for good.

Notes

1

The decision to introduce race norming two full years after the settlement agreement was reached is curious. The NFL and Class Counsel, according to the Henry Davenport complaint, “developed a Clinician's Interpretation Guide for the BAP (the BAP Guide) that expressly urges clinicians to ‘correct’ test scores based on a retired player's race. Specifically, the manual requires clinicians to ‘Convert test scores to demographically corrected T-scores via ACS software (use of the full demographic correction is recommended) or Revised Comprehensive Norms for an Extended Halstead-Reitan Battery.’ In the ACS testing software, ‘full demographic correction’ includes adjusting scores based on a player's race. And the mention of ‘Revised Comprehensive Norms’ is a reference to the ‘Heaton norms.’ The BAP Guide was developed confidentially by the NFL and Class Counsel in ‘a collaborative and iterated process,’ with no opportunity for Class members to be heard. The BAP Guide remains confidential” ().

2

Throughout this chapter I use gender categories/descriptions that caregivers – who, in the case of activism against race norming, are all women – use to self-identify.

3

The campaign is ongoing and is likely to continue. I analyze the activism of primary caregivers through November 2022.

4

The literature on activism in sport is too large and varied to rehearse here. See especially (, ). See also (; ; ; ; ; ).

5

Medical institutions, of course, are primary sites of discursive control of truth and forms of evidence. These discourses and forms have normalized perceptions of racial difference and aptitude as natural. See, for example, .

6

For an overview of the specialties that use race correction, how race correction is undertaken, and the effects of race correction see .

7

In their motion, Henry and Davenport argue “Using a reference population with a lower mean makes it harder to qualify, because a lower present-day score is needed for a T-score the same distance below the mean” ().

8

For more on the argument see https://www.nflconcussionsettlement.com/Docs/demographic_norms_sm.pdf where Special Masters appointed to the settlement write, “This technique [race norming] may be most charitably seen as offering an imperfect proxy for socioeconomic status. Research has found that structural barriers and accompanying misfortune early in life may lead to diminished performance on cognitive tests, even after controlling for education and age. Some researchers attribute disparities in neurocognitive test scores to three underlying factors: acculturation, socio economic status, and quality of education. As a result, clinicians are tempted to use race as a representative heuristic for these experiences which contribute to lower cognitive test scores” ().

9

It is outside the scope of this chapter to debunk the science undergirding the Heaton norms, but recent criticisms can be found in . Further, the effects of racism should be addressed by looking at racism and not race. M. Catherine Trimbur, a physician at the Transitions Clinic, a primary care facility for men and women, recently released from prison, argues “Racism is the actual modifier that shapes outcomes, not race, as race is not a biological concept but one given meaning only in a particular sociohistorical political context. Instead, clinicians should be engaging in conversations with patients about their experiences in the world and patients' own narratives of how their health reflects the embodiment of racism. This is also why we need research to more accurately examine the effects of racism on the body and not the subpar substitute of race” (personal correspondence).

11

In obstetrics and gynecology, Black and Latinx patients are perceived to have less success with VBACs and the algorithm used to determine eligibility correct for “race and ethnicity.” For more examples see .

12

See and Amon Gordon's case ().

13

In a letter to NFL Commission Roger Goodell, Democratic members of Congress – Senator Ron Wyden of Oregon, Senator Cory Booker of New Jersey, Representative Yvette Clarke of New York and Representative Maxine Waters of California – asked Goodell to explain how the measures were used, if any racial bias resulted, and if independent investigators had looked at the practice in the settlement ().

14

Other claimants asked to stay the mediation and to serve as amicus curiae. Kenneth Jenkins, former NFL running back who was not experiencing symptoms related to TBI, wrote Judge Brody directly requesting “to act as a Black player's voice at the negotiation table” pro se. He also requested his letter be placed on the docket.

15

In the concussion settlement, special masters are appointed by the Court to administer the Settlement Agreement on the Court's behalf. They have three primary functions. They (1) report and provide information to the court, (2) hear appeals of registration and claims decisions, and (3) supervise settlement administrators, hear complaints from Class Counsel, Counsel for the NFL, and the settlement administrators, and monitor fraud. Initially the Court appointed Wendell Pritchett, the Provost of the University of Pennsylvania and the Presidential Professor of Law and Education at Penn Law School, and Jo-Ann M. Verrier, Vice Dean for Administrative Services at Penn Law School, as special masters. The Court later appointed David Hoffman, Professor at Penn Law School, as well.

16

Discovery is a step in the legal process that requires both parties to exchange all evidence and the names of potential witnesses. Common forms of discovery are depositions, subpoenas, documents, and physical examinations ().

17

For more on the history and design of the NFL shield see https://www.profootballnetwork.com/nfl-logo-shield-history-design-meaning/.

18

The NFL wives operated within a set of social relations of power that incorporated a multiplicity of social actors, historical discourses, and political interests that had limitations just as any other activism outside the world of sport (see, for example, ; , ; ).

Five Key Readings

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