NFL Accused of ‘Systemic Racism’ in Handling Black Former Players’ Brain Injuries

The NFL is coming under growing pressure from critics who say its landmark concussion settlement treats ex-players differently based on race, making it more difficult for Black retirees to get payouts.

Critics argue the settlement amounts to a form of systemic racism because it uses race-based criteria for neuropsychologists to assess whether Black and white former players have valid dementia-related claims stemming from their professional football careers.

The concept of using different statistical curves based on race, known as “race-norming,” is inherently controversial. It is also the subject of a lawsuit by two ex-players, Kevin Henry, a lineman for eight seasons in the NFL, and Najeh Davenport, a running back for seven seasons, who sued the league last year for race discrimination.

Attorney Christopher Seeger, who negotiated the settlement on behalf of roughly 20,000 ex-players in the class-action suit, now also faces mounting criticism.

A petition signed online by more than 50,000 people will be presented on Friday to U.S. District Judge Anita Brody, who presided over the settlement. It asks that Brody, who chose Seeger as lead counsel for the class of NFL retirees, select a new attorney to represent the former players, about 70 percent of whom are Black.

“This is classic systemic racism,” said former NFL player Ken Jenkins, who will deliver the petition with his wife, Amy Lewis. Both are advocates for Black NFL retirees, though Jenkins is not a party to any individual lawsuits and is not suffering from head injuries due to his playing career.

“Just because I’m Black, I wasn’t born with fewer brain cells,” Jenkins said.

Attorney Christopher Seeger, who negotiated the settlement on behalf of roughly 20,000 ex-players in the class-action suit, now also faces mounting criticism.

A petition signed online by more than 50,000 people will be presented on Friday to U.S. District Judge Anita Brody, who presided over the settlement. It asks that Brody, who chose Seeger as lead counsel for the class of NFL retirees, select a new attorney to represent the former players, about 70 percent of whom are Black.

“This is classic systemic racism,” said former NFL player Ken Jenkins, who will deliver the petition with his wife, Amy Lewis. Both are advocates for Black NFL retirees, though Jenkins is not a party to any individual lawsuits and is not suffering from head injuries due to his playing career.

“Just because I’m Black, I wasn’t born with fewer brain cells,” Jenkins said.

Neither Henry nor Davenport, who are both Black, have had their brain injury claims accepted by the NFL. Each suffered multiple concussions across their careers and say they still feel the repercussions, with symptoms ranging from memory loss and depression to overall cognitive impairment affecting their daily lives.

Their lawsuit claims that in Henry’s case, an NFL-approved clinician initially found that he qualified for mild to moderate dementia, but his claim was nonetheless denied. A second clinician, after adjusting his raw scores using a “full demographic model … which includes age, education, race/ethnicity and gender,” found he did not qualify as impaired under the settlement.

For his part, Henry, 52, said he feels like a different person now as a result of the multiple concussions he sustained over his career with the Pittsburgh Steelers.

“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 Hill. “I’m more of a reclusive person now.”

Henry said it’s painful to watch the NFL portray itself as a social justice ally while denying him compensation for what he and his wife, Pamela, say is clear impairment.

“They come out with all these slogans like ‘We care’ and ‘Black Lives Matter,’” Henry said. “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.”

Brody, who was appointed to the federal bench by former President George H.W. Bush, dismissed the Henry and Davenport suit in March, though they have since appealed. She said the players’ lawsuit was an improper attack on the court-approved settlement deal reached by the NFL and Seeger.

But in her ruling Brody also said she “remains concerned about the race-norming issue” and ordered the NFL and Seeger to address the matter.

The issue is also getting some attention in Washington. Sen. Ron Wyden (D-Ore.), the chairman of the powerful Senate Finance Committee, wants to see the NFL eliminate the use of racial criteria for assessing brain injury claims.

“He is committed not only to ensuring the NFL stops using the race-based formula going forward,” Wyden aide Keith Chu told The Hill, “but also to ensuring any player previously denied benefits, or who chose not to apply because of the formula, is notified and given the opportunity to retest in order to get the benefits they deserve.”

The estimated $1 billion 2015 court-approved settlement has paid around $800 million in claims so far. Amounts range from around $27,000 up to $5.3 million, depending on a retiree’s age and degree of impairment.

In a statement to The Hill this week, Seeger defended race-norming, saying it had been used for decades. But he added that he is continuing to investigate whether former players have “been disadvantaged in any way by the application of race norms.”

“Moving forward, we are focused on eliminating the use of demographic norms that adjust for race, and putting into place purely race-neutral demographic norms,” he said.

The NFL said there is “no merit” to charges of racial discrimination in the payouts and downplayed the role that race-norming has had in assessing ex-players’ impairment levels.

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SOURCE: The Hill, John Kruzel