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Lawyers representing retired Black NFL players want race data released on concussion settlement payments after court-appointed counsel attempted to remove race as a factor in dementia testing. 

Civil rights attorney Cyril V. Smith represents the retired Black players who made up a majority of the players in the $1 billion concussion settlement, and demands authorization to take part in the court ordered mediation, according to the Associated Press. 

“It’s just very hard after the fact to make sure that Black players are carefully represented if you don’t have a seat at the table,” Smith told the Associated Press.

Black retired players believe the testing methods used relied on “race-norming,” which assumes Black people have a lower cognitive function compared to white people. Lawyers like Smith believe that the Black players in the case are being denied payouts averaging more than $500,000 because of the practice.

Earlier this month, a federal judge dismissed the lawsuit filed by Smith challenging “race-norming.” The practice is discretionary, with some doctors opting not to use it. Use of this practice makes it more difficult for Black retired players to prove diminished cognitive functioning.

The judge ordered Christopher Seeger as lead counsel to resolve the issue with the NFL. Seeger now represents the entire class of impacted retired players and promised to investigate whether “race-norming harmed any of the players.”

The NFL denied former players Kevin Henry and Najeh Davenport compensation, but both would’ve qualified if they were white. Smith represents both players. Both Henry and Davenport are seeking new counsel other than Seeger according to The New York Times.

Writing for The Nation, sports editor, Dave Zirin pointed to the hypocrisy of the practice being used in a manner that disadvantages Black players. As Zirin notes, the NFL and its owners rely on the labor and physicality of predominantly Black players.

Zirin pointed to an ABC News report which mentioned that some clinicians were concerned about discrimination. The league claims it’s up to the individual clinicians to use their professional judgment. But the clinicians say the protocols do not provide flexibility.

“I don’t think we have the freedom to choose,” wrote a clinician in correspondence obtained by ABC News. “If we do, apparently many of us have been doing it wrong.”

According to the Associated Press, a little more than a quarter of retirees filing dementia claims have been approved. Thousands of former players never filed a claim because their test scores did not appear to qualify. 

In a February interview with ABC News, Davenport called out the deeply rooted racism in the process. 

“What the NFL is doing to us right now … when they use a different scale for African-Americans versus any other race?” Davenport said. “That’s literally the definition of systematic racism.”

Anoa Changa is a movement journalist and retired attorney based in Atlanta, Georgia. Follow Anoa on Instagram and Twitter @thewaywithanoa.

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