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Melissa Harris-Perry: I'm Melissa Harris-Perry in for Tanzina Vega and this is the Takeaway. It's been six years since the NFL reached a $1 billion settlement in response to retired players connecting traumatic brain injury suffered during play to long-term loss of cognitive function.

Roger Goodell: It's something that we thought was important to do because we want to make sure that the players who may need help, who may need assistance or their families get that as soon as possible. Rather than litigating this for years and years, we have a fund that's available based on need.

Melissa Harris-Perry: Roger Goodell speaking about the settlement on CBS in 2015. Now the US Supreme Court then paved the way for the settlement in 2016 refusing to hear a challenge to a lower court decision on the agreement. In that settlement, the NFL did not actually admit guilt for its role in the player's brain injuries, but last week, the NFL admitted it is guilty of something else, a practice known as race norming.

Now race norming means the league determined eligibility for settlement dollars based, in part, on the race of the player. Using a decades-old medical practice, the NFL asserted that Black players typically had lower cognitive function than their white counterparts. In short, race norming made it harder for Black players who qualify for a payout if they have dementia, and now the NFL says it's re-evaluating all prior claims made under the concussion settlement.

In the statement put out by the league last week, a spokesperson said, "Everyone agrees race-based norms should be replaced," but no off-the-shelf alternative exists, and that's why these experts are working to solve this decades-old issue.

Duce Staley: Very insulting for that to even be going on.

Melissa Harris-Perry: Former running back and current Detroit Lions assistant head coach, Duce Staley, weighed in on the news with reporters last Thursday.

Duce Staley: Now the NFL is correcting themselves. Without being corrected, you still have a problem, but now I guess they're coming out and saying, "Okay, this was wrong," this, that, and another, and they correcting it now, which that's what you want.

Melissa Harris-Perry: Other former players are more skeptical that the NFL is ready to hold itself accountable for the racially biased practice. For more on what the recent decision made by the NFL mean for Black players, I spoke with Ken Jenkins, a former Washington running back and Maryclaire Dale, legal affairs writer for the Associated Press and 2018 Nieman Fellow at Harvard.

Maryclaire Dale: I think what's interesting is that it was developed in medicine, specifically in neurocognitive medicine in the early 1990s with the goal of really capturing more people who might meet treatment. When people take dementia tests, which often include several hours of testing under many different types of skills, memory, language, executive function, et cetera, the scores can be normed by both gender, education, and in this case, race.

Again, in medicine, it was intended to offer more people treatment that might need it and whose scores may not have suggested that they had some cognitive disabilities, but here, in this case, instead of looking at people holistically, they were using it to look at the scores to determine a legal award, which even medical ethicists and doctors say it was never the intention of how these norms were designed to be used.

Melissa Harris-Perry: Yet, Mr. Jenkins, it's not as though the NFL looked at itself, its own practices and was like, "Oh, this is terrible, we should stop." What did it take to actually bring this to light and to move this towards ending the practice?

Ken Jenkins: It took the efforts of the wives who actually have to manage their household and their families while they watch their husbands steadily and slowly decline, the men that they knew to be these vibrant human beings. It took a petition of 50,000 signatures to shed light on the subject and the practice, and that's what really moved the needle. There were lawyers who actually had been working on this for three or four years and could get no movement at all, but once the public outcry got to be loud enough, they change their story.

Melissa Harris-Perry: As a former player, and in particularly, I'm thinking about your wife and the other wives and partners who, as you point out, are managing the realities of these traumatic head injuries and of the following cognitive issues that come along with it. How are y'all feeling about the NFL in this moment?

Ken Jenkins: We understand that the NFL owns Sunday and the NFL is mega-powerful, smart lawyers, expensive lawyers. We realized that we're David and Goliath here, us being David obviously. We feel like we've gotten some wins here with the NFL disbanding the race norming algorithm, and they've also decided they're going to go back and retroactively look at all the players who may have been race normed.

That's a win, but overall, we just don't trust them because they were the architects of this side door that allowed them to get away with it for so long. The proof is in the pudding, if they do this, that's great. My concern is, is that there'll be another side door because they are slick and smart. To this point, Chris Seeger, who was supposed to be our representative, has been overpowered by the NFL.

Melissa Harris-Perry: Maryclaire, let me come to on exactly that, that feeling or that reality of being overpowered by the NFL. Some were saying this even before the race norming became public about the idea of the $1 billion settlement in and of itself. That $1 billion sounds like a lot but relative to what is made in the NFL, but it's actually small potatoes. Is this settlement big enough?

Maryclaire Dale: Right now the settlement is untapped. That, in some ways, is what's led to this issue, I think, of the NFL appealing awards if they were not "fully demographically normed," which means if they were not race-normed. The settlement came about in 2013 through secret negotiations after hundreds of lawsuits had been filed against the NFL by former players who accused the NFL basically of fraud, and said that they had hidden what they knew about the effect of repeated concussions and sent people back out on the field.

Rather than go to trial, it was a risk for players as well. The two sides forged a settlement, which initially was capped at $765 million. The judge fairly quickly within, I believe, a year or two by 2015 had realized that that was not going to be enough, and she really, I think, forced the NFL to uncap it. The NFL, of course, is footing the bill for the award fund, but because of that, the NFL started to become much more aggressive, appealing awards more frequently.

Really, only about 28% of the dementia claims were leading to an award, and these were claims which doctors had determined that the person had a certain level of dementia. Yet 70% of the time, they were being rejected. That is when, I believe, the lawyer started to look more closely at how they were scored, and, I think to their surprise, realized that this race norming was occurring.

Melissa Harris-Perry: Maryclaire, are you saying the physicians were not aware that the race norming practice was happening?

Maryclaire Dale: I think they are. I think that it's actually up to them to do it. Again, I think physicians most often want to look holistically at a patient and bring in their education, in other words, is this what they're seeing representative of who the person was. What's interesting about this case is that I think Ken and others would argue correctly that the NFL players, Black, white, or other races have more in common with each other than not because most of them had three years of college, they may come from more similar than dissimilar backgrounds in some cases.

The whole thing was meant to be a crude proxy for socioeconomic levels, but here you have a group of men who have a more similar background again than not.

Melissa Harris-Perry: Maryclaire, that is so helpful, that reminder that race is a social construct. It's not norming based on blood type or some other kind of physiological reality. In this case, there's every reason to think that the social grouping here is more relevant than any of the divides around race. Ken, I want to come back to you on this a bit because the NFL is claiming that it's going to go back, review old claims. Do you think that's enough or are you and other retired players and families looking for something more?

Ken Jenkins: We think that's a step in the right direction. We are looking for more. We want, and I feel like if they don't provide us with all the demographic information of all the people who've been through the regimen and all the testing to reveal what the true facts and the true numbers are, then we haven't really illuminated what they have done. I believe if that information was in the NFL's favor, they would have released that information already. The NFL and their lawyers, their job is to reduce the exposure in the suit.

I'm in the insurance industry. I work with big corporations as much as I can, and there's always a fight between the client and the insurance companies as to what they're going to cover, and if there is a side door somewhere, the insurance companies will exercise it. Given that the NFL with Chris Seegers capitulants has put us in a terrible situation where we can't trust what they come up with at this point.

Melissa Harris-Perry: When you talk about that, that side door, there's multiple side doors, the lack of trust, I'm wondering if any of that is deterring young people, and maybe their family's from entering the league.

Ken Jenkins: It's really interesting. I talked to some very high-powered folks at both the NFL and the NFLPA, and not to names, but to say, "As long as there are poor folks, there are going to be kids playing football."

Melissa Harris-Perry: They call you all gladiators for a reason. That same idea of how it works for the public entertainment.

Ken Jenkins: Yes, and we know it's an extremely violent game, but we know more about concussions now than we knew back when I played and certainly prior to that in the '70s and '60s, so the concussion protocols are better. I worry now that they're going to make it more difficult for all players to qualify under the suit leaving them another side door wth this case not being transparent. I think Maryclaire can speak to, there will be more transparency, but with the way that the agreements were done prior to this, there was no transparency, so we don't really know what's being discussed.

Melissa Harris-Perry: That transparency question, let me come to you, Maryclaire, because that's precisely what media or what reporting, what social movements are meant to do, is to bring some level of transparency to practices like this. What will you be keeping your eyes on? You hear Ken Jenkins here talking about the fear of another side door, how do you see your role in terms of reporting on this to move towards practices of equity?

Maryclaire Dale: Very interestingly, the players filed this suit in 2020 after their attempts to do it through the administrative process, basically the award fund had failed, and the judge dismissed the suit this year on procedural grounds. Again, amongst the action and petition drive and publicity that people like Ken and his wife have taken part in, the judge, in a very, very unusual way, after dismissing the suit decided that it was very important and asked a magistrate to compile a report on it.

That report is now due Friday, this Friday, and that was a new development. Initially, there was not a deadline for that report. We are very much hoping, Ken and others and the lawyers for the more of the Black players, we really want to see the payout data by race, and see how often, what's the percentage of successful claims by Black players versus white. Again, the NFL is now pledging to review those and correct anything where a player did not get an award that he would have had he been white.

Again, they will be fighting these claims probably because it's its dollars and it's also reputational damage. One note on that, this settlement is likely to go beyond about a billion dollars, they've paid out about $800 million so far. To put that in perspective, I believe the NFL just signed their latest multi-year TV contract for $113 billion. The players would, I think, argue that they have the money to right the very serious brain injuries that people are suffering from.

Melissa Harris-Perry: I'm going to leave it on that idea of $113 billion television contract and a $1 billion settlement for the players. Maryclaire Dale, Legal affairs writer for the Associated Press and a former Nieman Fellow, and Ken Jenkins, a former Washington running back. Thank you both so much for talking with us through this.

Ken Jenkins: Thank you.

Maryclaire Dale: Thank you. It's been great to be with you, thank you.

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Melissa Harris-Perry: Before I let Ken go, I did have to ask him to weigh in on another NFL-related matter. What to rename his former team, which is currently just going by the Washington Football Team?

Ken Jenkins: [laughs] That's really funny. I actually like the Red Wolves. If you could imagine 70,000 people as a team comes on the field howling like a wolf.

Melissa Harris-Perry: I'm for that. Actually, I get that. I like that, yes.

Ken Jenkins: I like the Red Wolves, I do.

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