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NFL under fire for ‘systemic racism’ over payouts to black players from brain injury settlement

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Critics of the National Football League say the nation’s most lucrative professional sports franchise is guilty of “systemic racism” by allegedly shortchanging former black players as part of a court-settled brain injury payout.

The landmark concussion settlement reached in August 2013 with the league’s then-18,000 retired players saw the NFL agree to a $765 million payout to settle a lawsuit from around 4,500 ex-players, many suffering from dementia, depression, and Alzheimer’s disease. The former players claimed the league hid the long-term physical damages caused by successive concussions from hard hits during games, while also blaming coaches and the league for putting brain-injured players back onto the field too soon.

While the league denied the allegations, at the time Commissioner Roger Goodell told the league’s attorneys to “do the right thing for the game and the men who played it.”

But now, critics say that the league is not treating its former players the same and is instead making it harder for black retired players to get payouts, The Hill reported Friday.

Settlement amounts are a form of systemic racism, critics charge, because the league is allegedly utilizing race-based benchmarks for its neuropsychologists to determine if former black and white players are making valid claims that their dementia and other disorders were actually caused by football.

The use of different statistical criteria base on race, which is called “race-norming,” is controversial, critics charge. In addition, the use of the standard is at the center of a lawsuit filed by two former players — Kevin Henry, who played as a defensive lineman for eight seasons with the Pittsburgh Steelers, and running back Najeh Davenport, who played for seven seasons. The suit alleges that the NFL is guilty of discrimination.

In addition, Christopher Seeger, a lawyer who helped negotiate the original settlement in the 2013 class action suit, is now facing increased criticism as well.

On Friday, a petition signed by more than 50,000 people will be presented to U.S. District Judge Anita Brody, who presided over the settlement, asking her to choose a new attorney to represent the former players, of whom about 70 percent are black. Brody chose Seeger to represent the ex-players.

“This is classic systemic racism,” former NFL player Ken Jenkins said, adding: “Just because I’m black, I wasn’t born with fewer brain cells.”

Jenkins will be presenting the petition to Brody’s court along with his wife, Amy Lewis, both of whom advocate for black NFL retirees, The Hill reported.

Both Henry and Davenport, who are black, have not had their claims accepted by the NFL though both suffered several concussions over the course of their careers. Both former players also maintain that they still deal with the repercussions of those repetitive injuries ranging from loss of memory to being cognitively impaired while trying to function in their daily lives.

Henry maintains in the suit that an NFL-approved clinical specialist at first found that he was experiencing mild to moderate dementia and qualified under the program, but the league still denied his claim. A second examiner adjusted his scores employing a “full demographic model … which includes age, education, race/ethnicity and gender” before summarily finding that he did not qualify for a payout.

Henry said he definitely believes the repeat concussions had an adverse impact on him.

“I had more friends. I was more social. I could carry on a conversation without repeating where I was in the conversation. I could find my way around the city better. I could drive without having accidents. Those kinds of things have all changed,” he told the outlet “I’m more of a reclusive person now.”

“They come out with all these slogans like ‘We care’ and ‘Black Lives Matter,’” Henry added. “And I’m sitting there, like, you’re lying. You’re lying out of your teeth. It’s so painful to sit there and watch, knowing that you know something totally different.”

The NFL has pushed back on claims that payouts are being handled differently due to race.

Brian McCarthy, a league spokesman, said “the number of players potentially affected by the use of race-based normative adjustments is a fraction of what has been alleged.”

“The NFL nevertheless is committed to helping find alternative testing techniques that will lead to diagnostic accuracy without employing race-based norms,” he added, according to The Hill.

“As requested by the Court, the NFL is working with Class Counsel, and the parties’ respective medical experts, under the guidance of the federal magistrate judge, to that end. We understand that the Court intends to solicit the views of interested parties as part of the process,” McCarthy said.

Jon Dougherty

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