Excerpted From: Victoria Nauman, Tackling Discrimination in the NFL: How the Recent CTE Race-Norming Agreement Highlights the Need to Provide Broader Anti-discrimination Protections for NFL Players Through Collective Bargaining Agreements, 14 William & Mary Business Law Review. 489 (February, 2023) (198 Footnotes) (Full Document)


VictoriaNaumanNajeh Davenport retired from his seven-year National Football League (NFL) career as a renowned running back and went on to earn an advanced degree in education, become a teacher, and then participate in a documentary. He also sustained at least ten concussions and broke his eye socket requiring surgery, all before his retirement at age twenty-nine. Though his second act seemed promising, he soon had to stop working as he began experiencing symptoms of memory loss, quick temper, and depression. The NFL agreed in 2016 to provide compensation to players who are experiencing the onset of medical conditions similar to Davenport's, including symptoms of chronic traumatic encephalopathy (CTE), due to game-related head trauma. However, when he was evaluated by an NFL-approved doctor and deemed eligible to receive compensation for his loss of cognitive function, the NFL appealed the award to recalculate the evaluation data to include his race, resulting in a lower payout in his initial claim.

Davenport is not alone in his experience. His class-action lawsuit, also joined by Kevin Henry, highlighted how Black retired NFL players are being denied the full benefit of the concussion settlement due to the NFL's use of “race-normed scores.” The suit, Henry et al. v. National Football League, et al., asserted that Black NFL players are entitled to more damages for degenerative brain conditions, for they were often evaluated on a lower baseline of cognitive function than their white counterparts, resulting in lower settlements. The cause of action asserts that this violates Section 1981 of the Civil Rights Act of 1866, which protects the right to engage in contracts and broadly prohibits employment discrimination based on race.

As a result, in June 2021, the NFL pledged to abandon the practice of race-norming in the calculation of settlement claims arising from concussions during gameplay in the aftermath of the Eastern District of Pennsylvania dismissing the suit for “an improper collateral attack.” The settlement was formalized in October 2021, eliminating the use of race-norming going forward and allowing for the reexamination of already settled claims of those affected.

This is but one example of the NFL deliberately discriminating against their players of color. In a league where at least half of the former players are Black and presently is roughly seventy percent Black, the NFL needs greater accountability for ensuring that the civil rights of their majority-minority players are protected. This Note examines how the justice system is unable to hold the NFL accountable, as the NFL can simply settle their issues without enacting real, systemic change that is needed in the twenty-first century.

Race-norming is not only a morally wrong practice that should be scrutinized, but it also violates civil rights protections established under Section 1981. The NFL, being a twelve billion-dollar industry, circumvents said civil rights protections by settling to protect their image. While injunctive relief has been provided through the settlement at issue, there is no telling if this will be enough to encourage the NFL to stop furthering discriminatory policies in other facets of the organization. Likely, it will not be. This is partially attributable to NFL players having unequal bargaining power with the machine that is the NFL.

This Note argues that the NFL's treatment of Black players by race-norming CTE settlements exemplifies how the NFL fails to make necessary changes to practices that harm their players of color. While this Note primarily focuses on the issue around baselining Black players' data, the argument for greater civil rights protections can be extended to all players of color. Further, the justice system falls short of protecting players who have faced discrimination, when the NFL can continue to settle out of controversies rather than making structural changes to the organization that is needed to protect players from discrimination. To effectuate these changes, the NFL should reflect its commitment to ending discrimination in the league by modifying the present collective bargaining agreement (CBA) with the National Football League Players Association (NFLPA). By making these changes, it is hopeful that the NFL will better protect their players from the discrimination that former players have experienced when they failed to do so in the present CTE settlement.

Part I will begin by discussing what CTE is and how it relates to the NFL settlement to end race-norming when calculating brain damage-related payouts. This Part will then argue that this settlement is not enough to protect against players being discriminated against in the future by the NFL. Part II will then walk through the different legal remedies available to protect players' rights and then demonstrate how each legal remedy is ineffective at actually holding the NFL accountable when they can settle. Part III will turn to contract law and will discuss how the present and future CBAs between the NFL and NFLPA can be modified to further protect players from discriminatory practices, such as racenorming, and have it reflected in player agreements with their teams. This Part will also anticipate counter-arguments, such as mentioning that players are already highly compensated. However, in this present wave of civil rights era, now is the perfect time to begin a practice of advocating for said greater protections.

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Ultimately, this Note hopes to highlight the overarching themes of unequal bargaining power between the machine that is the NFL and its players. Players, through the representation of the NFLPA, should assert their rights in this era of social reform in order to afford themselves, and afford future players, greater protections and benefits down the line. CTE has been present for a long time amongst contact sports players, and athletes in general should be able to receive just compensation for putting their health and safety on the line in order to make sports empires more money. Such compensation should not be precluded by race. This is but one example of where the NFL needs more accountability, rather than just punting its controversial practices to out of court settlements instead of enacting proactive, league-wide change. By modifying the CBA to ensure that the NFL's promise to abandon racial discrimination, including race-norming practices, a lesser amount of discrimination may actually come to fruition for future players in the league.