Hernandez trial, O'Bannon case, Top 10 moments for sports law in '13
It was an extraordinary year in sports and the law in 2013. While current athletes remain unwilling to use the legal system to "right wrongs", 2013 saw more than 5,000 retired NFL, NHL and NCAA athletes wage litigation against their former leagues.
This year also saw legal issues in sports betting, performance-enhancing drugs and NFL locker room bullying rise to the forefront. Three star athletes -- Lance Armstrong, Alex Rodriguez and Aaron Hernandez -- also commanded a great deal of attention for their very different legal problems.
Last, but certainly not least, a major American sporting event, the Boston Marathon, was struck by an act of terrorism. The cowardly and diabolical actions led to an amazingly heroic response by law enforcement, first responders and many other citizens.
Here are my top 10 sports law stories from 2013 and my scouting report on each for what to expect in 2014.
10. Governor Chris Christie wages fight to legalize sports betting in New Jersey
New Jersey Governor Chris Christie, a potential presidential candidate, is staking part of his reputation on sports law. Specifically, he wants to legalize sports betting in New Jersey. Christie thought he did so in 2011 by signing the New Jersey Sports Betting Law. The law legalized betting on pro and college games at casinos and race tracks, though bets on games played by New Jersey colleges and on college games played in the Garden State remained barred. The law was expected to generate millions of dollars in tax revenue, some of which would have been set aside to help New Jersey's disabled and elderly.
The NCAA, the major pro leagues and later the U.S. Department of Justice had other ideas for New Jersey. They sued, arguing that Christie's law violated the federal Professional and Amateur Sports Prohibition Act (PASPA). PASPA prohibits sports betting across the country ... by in large.
PASPA, enacted in 1992, applies only to 46 states. Oregon, Delaware, Montana and Nevada, which annually nets around $20 million from taxing sports betting, were grandfathered. Each had previously legalized the practice that Congress decried as a "national problem" for triggering human hardship and discrediting games. PASPA also furnished New Jersey a 1-year window to authorize sports betting. Despite the pleas of Atlantic City's casinos, the Garden State declined.
Christie, in the view of the NCAA and pro leagues, now wants to rewrite history. In NCAA v. Christie, sports gambling is portrayed as endangering "honest athletic competition" and as undermining "the public's faith and confidence" in team sports. The economic impact of sports betting is also described as extending across states. This is an important argument: the U.S. Constitution's "Commerce Clause" authorizes the federal government to regulate interstate commerce.
In February, U.S. District Judge Michael Shipp agreed with the NCAA and leagues. He upheld PASPA and blocked Christie's law. Christie appealed to the U.S. Court of Appeals for the Third Circuit, but in September it affirmed Judge Shipp's ruling. Christie's last hope is to convince the U.S. Supreme Court to take the case. He has until February 2014 to seek review.
2014 Scouting Report
Although the U.S. Supreme Court only takes about 1 percent of cases, there's a fair chance it will hear Christie's. Christie's legal argument emphasizes a different part of the Constitution that may appeal to at least five of the nine justices. Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy tend to hold a broad view of the 10th Amendment, which reserves to states' powers not delegated to the federal government in the U.S. Constitution.
So-called "police powers" to regulate health, safety, and morals of citizens are generally reserved to states. In Christie's view, PASPA is not about regulating interstate commerce -- especially for local office pools -- but rather imposing moral judgment and removing personal choice. Expect Christie to depict leagues and the NCAA, which attract fans' dollars in part because many fans bet on games, as disingenuous. These five justices also hold a relatively narrow view of the Commerce Clause, which they recently interpreted as failing to justify the new federal health care law (a.k.a. "Obamacare").
Don't expect a final resolution on NCAA v. Christie before Super Bowl XVLII, but its potential impact reaches far beyond the Boardwalk Empire. If New Jersey wins and the federal prohibition is lifted, additional states would legalize sports betting. Does the nation, with very different attitudes than it held in 1992, still support a federal ban? The odds have surely changed.
9. NHL concussion litigation and the future of NHL fighting
In November, a group of 10 retired NHL players filed a federal lawsuit against the NHL for failing to protect them from concussions and other neurological problems.The players would like to see their lawsuit, which in some ways mimics NFL concussion litigation, become a class action. The plaintiffs' attorneys say that 200 retried players have since joined the case, although one of the 10 named players -- former Maple Leafs captain Rick Vaive -- asked to be removed.
The legal case against the NHL for concussions is less persuasive than the one brought against the NFL. Retired NHL players focus on how the league knew of information but didn't share it. For instance, the NHL allegedly knew about published studies on brain injury from the 1920s but didn't notify players of those studies' findings.
Even if that contention is true, it probably wouldn't constitute unlawful conduct: the NHL could not have concealed publicly-available information.
Other allegations, such as that the NHL should have adopted more sophisticated brain monitoring, seem tempered by the fact that the NHL negotiates most safety rules with the NHLPA, which was noticeably unmentioned in Leeman's 13,700 word complaint.
The NHL has not changed its policies since the lawsuit was filed. Commentators expected, following an especially brutal Bruins-Penguins game in December, that the league would impose a lengthy suspension on Bruins forward Shawn Thornton for repeatedly punching Penguins defenseman Brooks Orpik and concussing him. The thinking was that the NHL did not want to "go light" on Thornton as lawyers for the retired players would use it against the league in court. Instead, the NHL suspended Thornton for 15 games, an amount that is generally viewed as consistent with previous suspensions.
2014 Scouting Report
The filing of the NHL concussion suit after the NFL announced a proposed $765 million settlement in its concussion case was not coincidental. It stands to reason that the retired players may hope to extract a similar, albeit smaller, settlement from the NHL. Even if the NHL believes the retired players' case is weak, the league has incentives to strike a deal. For one, pretrial discovery may require NHL officials and owners to testify and share guarded information about league and team finances. Also, concussion litigation can damage a league's image, thereby imposing a cost by not settling. If other retired NHL players join the Leeman group or file their own lawsuits, the NHL may feel the weight of litigation on its shoulders and seek relief through settlement.
The NHL, however, may decide to wage a litigation battle. The league knows that it can cite the role played by the NHLPA in crafting safety rules. The NHLPA, in fact, has resisted player safety changes over the years. For instance, the NHLPA opposed requirements that players wear helmets and, more recently, eye visors. The NHL is also prepared to argue that it is impossible to know when players suffered brain injury, given that every NHL player has taken thousands of shifts in other games and practices before their first NHL game. The NHL can also argue that players simply assume the risk of injury by playing such an obviously dangerous sport.
The most important outcome of NHL concussion litigation may be how it impacts fighting. The connection between NHL fighting, which triggers a penalty but not a suspension, and brain injury is not obvious. Proponents of fighting say it deters cheap shots, including to the head, that might transpire if draconian penalties all but outlawed fighting. Opponents stress how punches cause brain jury and cite anecdotal evidence of several retired enforcers dying by apparent suicide. One thing is clear: the NHL is increasingly isolated among hockey leagues in tolerating fighting. Fighting is banned in NCAA, international and Olympic hockey, and in January USA Board of Hockey's directors may vote to ban fighting at all levels of U.S. amateur hockey.
8. Jonathan Martin-Richie Incognito bullying saga, potential impact of Wells Report
In October, Dolphins tackle Jonathan Martin left the team due to emotional distress. He never returned. The alleged main source of Martin's distress was veteran teammate Richie Incognito. Reports surfaced that Incognito texted Martin racist comments, made physically-threatening remarks and forced Martin to pay five-figure team dinner tabs. If proven, Incognito's conduct would open the door for Martin to sue him for intentional infliction of emotional distress and civil extortion. The Dolphins suspended Incognito indefinitely in November.
The Martin-Incognito story goes beyond these two players. It's rumored that Dolphins coaches wanted Incognito to "toughen up" Martin, a Stanford grad from an Ivy League family. Those allegations hint at potential vulnerability for the Dolphins to a negligent supervision lawsuit. There are also allegations Dolphins' "bullying" extended beyond Martin to other younger players, particularly in regards to buying meals for veterans. Moreover, there are questions about Martin's credibility. Some wonder if he believed Incognito was merely sarcastic, especially if they were -- as Dolphins quarterback Ryan Tannehill insists -- "best friends."
In November the NFL tapped prominent attorney Ted Wells to investigate the Dolphins' workplace conduct and to submit a report to NFL commissioner Roger Goodell. Wells' report is expected sometime in early 2014. Martin's predicament has caused friction with the NFLPA, which has the awkward responsibility of advocating for both Martin and Incognito. Martin's attorney, David Cornwell, revealed that Martin excluded NFLPA representatives from Martin's meeting with Wells.
2014 Scouting Report
The Wells Report will surely prove controversial. While Goodell assured the public that the report will be "independent," it should be remembered that Wells is an attorney paid by the NFL. He presumably will not author a report that suggests either the league or Dolphins acted in an unlawful way. Along those lines, the Wells Report may not tell the whole story.
Wells lacks the subpoena power to force coaches or players to speak or provide key information. Additionally, persons he interviews do not speak under oath, and thus would not perjure themselves if they knowingly lie to him. Still, NFL employees have contractual obligations to cooperate with league investigations and it appears Wells has generally found Dolphins coaches, staff and players to be cooperative.
In his report, Wells has to be cautious to avoid describing Martin, Incognito or other Dolphins employees in ways that could trigger defamation lawsuits. The NFL learned its lesson from Jonathan Vilma's lawsuit in the wake of the "Bountygate" report: be careful attributing specific acts to specific players. Watch for Wells to offer generalities in terms of wrongful conduct attributed to named players. In contrast, his report will likely offer specifics in terms of suggested policy changes. One nearly certain recommendation will be that teams limit ways veteran players require rookie players to pay meal tabs.
For their part, the Dolphins are poised to trade or release both Martin and Incognito. It is unlikely that Martin would pursue legal action against Incognito or the Dolphins, as doing so could have the unintended effect of scaring away other teams from employing him. Still, if Martin cannot find employment with another NFL team, the prospect of suing the Dolphins or NFL may become more appealing. Similarly, Incognito is unlikely to pursue any legal action, such as a defamation suit against the NFL and Dolphins, though unemployment could change his mind.
7. Lance Armstrong admits to doping and is hit with multiple lawsuits
In January, seven-time Tour de France winner Lance Armstrong admitted to Oprah Winfrey that he doped. He stressed that he did not dope after 2005 and asserted that virtually every rider doped in the 90s and 2000s.
The fallout to Armstrong's admission was momentous, including from a legal perspective. Armstrong was sued by several groups, all of which levied the same basic accusation: they paid Armstrong because of his accomplishments, but those accomplishments were fraudulent. One group sued him for $5 million because they felt misled by his autobiography "It's Not About the Bike: My Journey Back to Life."
Other lawsuits, at least one of which has settled, stem from bonuses paid to him for winning races. These groups, and their attorneys, are empowered by the fact that Armstrong does not want to testify under oath. If he testifies and repeats his denial to Winfrey that he did not dope after 2005, the U.S. Anti-Doping Agency -- which banned Armstrong from cycling in 2012 and contends Armstrong doped between 2008 and 2012 -- would urge that Armstrong be criminally charged with perjury. In other words, even if Armstrong has the law on his side, the parties suing him can use the threat of pretrial discovery to compel him to pay them off.
The most worrisome case for Armstrong is the whistleblower lawsuit brought by former teammate Floyd Landis and the U.S. Department of Justice. The lawsuit contends that Armstrong and other members of the Tailwind racing team defrauded the U.S. Government. The theory of fraud is based on Armstrong and other riders cheating to victory while accepting $40 million from the U.S. Postal Service in a sponsorship contract. The lawsuit is brought under the False Claims Act, which permits trebled damages and thereby threatens Armstrong and his co-defendants with over $100 million in potential damages.
Armstrong's attorneys believe the whistleblower suit is deeply flawed and their arguments have some merit. They view the government's claims as time-barred by the relevant statute of limitations. They also regard the Postal Service's moral stand as disingenuous and opportunistic.
Armstrong's attorneys contend the Postal Service was well-aware of cheating accusations against Armstrong in the 90s and early 2000s, but still choose to do business with him because he made them money. On that front, according to Armstrong, the Postal Service's own studies show the sponsorship was highly profitable. One study allegedly reveals the Postal Service earned three times what it paid Armstrong. If this case ever goes to trial, Armstrong would have powerful arguments to share with jurors.
In November, U.S. District Judge Robert L. Wilkins indicated he may dismiss the whistleblower case against some of Armstrong's co-defendants, but likely not Armstrong. The case is many months away from trial.
2014 Scouting Report
Moral arguments against Armstrong appear stronger than legal ones. Still, Armstrong is likely willing to pay a premium to avoid testifying and to avoid the risk of losing a case that could wipe out his wealth. The most plausible outcome is that Armstrong will reach financial settlements, perhaps in 2014, with the parties suing him. Only 42, Armstrong likely wants to move onto the next chapter of life. He'll have to pay for it.
6. NFL reaches proposed settlement in concussion litigation, but some retired players say no
In August, the NFL and more than 4,800 retired players and more than 1,000 of their family members reached a proposed settlement in the concussion and brain injury litigation. If approved by U.S. District Judge Anita Brody, the settlement would require the NFL and its team to pay $765 million. The money would be divided mainly between two groups: retired players and their families, and medical research. The mechanics for distributing the money are not yet established, but it is expected that retired players would receive different payments based on their age, years played in the NFL and type of neurological injury.
Many critics lambasted the settlement as an unfair win for the NFL, which (depending on what figure you use) generates between $9 and 11 billion in revenue a year. These criticisms gained momentum in October when PBS aired the Frontline special "League of Denial," which portrayed the NFL as indifferent or worse to players' health.
Other commentators have focused more on the technical challenges in the plaintiffs' legal arguments. Those challenges include the fact that some claims may be barred by collective bargaining agreements and statutes' of limitation, while unclear causation (were players injured in the NFL, college, high school or Pop Warner?) and assumption of risk (didn't players know that football was dangerous?) also cloud the case.
To the extent legal -- as opposed to ethical -- arguments are questionable, the proposed settlement is more of a win for retired players.
The proposed settlement has not stopped retired players from suing the NFL. Retired players are not bound by a proposed settlement and can bring their own lawsuits. In the last few weeks, at least 66 have done so. They include former Broncos quarterback Craig Morton, former Seahawks wide receiver Koren Robinson and former and former Oilers defensive end Willis Peguese.
2014 Scouting Report
Several attorneys with connections to retired players tell SI.com to expect many more retired players to sue the NFL over the next few months. They assert some retired players who currently support the settlement will oppose it when they discover they'll receive less than expected. New lawsuits, and uncertainty over the mechanics of the proposed settlement, would delay when Judge Brody is presented with the settlement. One attorney goes so far to say presentment won't happen until the summer of 2014,"it's that messed up."
It is is still expected that Brody will approve the proposed settlement, since rejecting it would put retired players and the NFL back in court. But the more retired players signal they are dissatisfied with the proposed settlement, the more Brody will question whether to approve it. Hearings on the proposed settlement could turn out to be much more contentious than originally anticipated. The NFL has to worry the proposed settlement remains just that.
5. Jameis Winston cleared in rape investigation, but civil litigation may follow
In January, Florida State quarterback Jameis Winston was accused by another FSU student of sexually assaulting her a month earlier. Tallahassee police investigated the allegation but deemed the case inactive when the accuser would not cooperate. The accuser would later say, through her attorney Patricia Carroll, that she was pressured by a detective to drop her allegations. Carroll would also claim that the police department was noticeably slow in providing her important materials, including toxicology reports. The alleged inference was clear: the Tallahassee Police Department had interfered with its own investigation in order to protect the star quarterback and his football team.
In November, at the height of a media firestorm, state attorney Willie Meggs essentially took over the Winston investigation. On December 5, Meggs announced that Winston, who admitted to having sex with the accuser but insisted it was consensual, would not be charged. Apparent gaps in the accuser's memory, among other factors, dissuaded Meggs from seeking charges. Twelve days later, Winston would become the youngest player to win the Heisman Trophy. Draft experts already predict that he will be the first overall pick in the 2015 NFL draft.
2014 Scouting Report
While Winston has avoided criminal charges, he may still face a court's judgment. The accuser has until December 2016 to sue him, most likely for battery, false imprisonment and intentional infliction of emotional distress. These civil claims would be heard by a jury and would only require the accuser (who would have to identify herself) to convince jurors that Winston probably broke the law. The accuser could thus wait until Winston is drafted and signs an NFL contract and endorsement deals to sue him. Suing earlier may make more sense, however, since evidence and witnesses can become unavailable over time and a civil judgment against Winston would stay with him until he pays it off.
It is also possible that Winston could reach an out-of-court settlement with the accuser to avert a high-profile lawsuit. The settlement would allow the accuser to remain anonymous while relieving Winston, and his potential NFL employers and sponsors, of the threat of a looming lawsuit.
Some have speculated that Winston may want to sue the accuser for defamation. Don't expect that to happen. Even if Winston genuinely believes that he has been wronged, a lawsuit would require many hours of his time, would bring a terrible accusation back into the spotlight and would distract him from football. As a public figure, he would also have to establish that the accuser wasn't merely mistaken about whether she consented, but in fact had "actual malice" -- that is, knowingly lied to police. It would be hard to establish.
4. New legal strategy helps MLB suspend Ryan Braun, while Alex Rodriguez fights back
In March, Major League Baseball turned the tables on rules for uncovering players' use of performance-enhancing drugs. Baseball sued Biogenesis, a clinic linked to selling PEDs to more than a dozen players, and its executives, most notably director Tony Bosch. The legal claim was that by inducing players into buying PEDs, Biogenesis induced players into breaking their big league contracts. The lawsuit initially attracted scorn, since players presumably were not coaxed into buying PEDs but rather sought them out. Nonetheless, the strategy proved brilliant when Bosch decided to cut a deal with baseball's lawyers. In exchange for supplying baseball with client information and records, Bosch was dropped as a defendant.
Armed with Bosch's materials and other information, baseball informed Alex Rodriguez, Ryan Braun and 12 other players the league was going to suspend them, perhaps for life. These players had not failed drug tests, but baseball relied on other collectively-bargained language to convey the threat. Players are barred from conduct that involves participating in the sale of PEDs or undermines the bests interests of baseball. Baseball was prepared to test the language, knowing that players could challenge suspensions through arbitration. Instead, all of the players except Rodriguez essentially agreed to plea deals. The players accepted responsibility in exchange for lesser penalties. Braun received a 65 game suspension, while Nelson Cruz, Jhonny Peralta and 10 others each received 50 games.
As to Rodriguez, Selig suspended him for 211 games—the longest non-lifetime suspension in baseball history. If the suspension is upheld, it will cost Rodriguez approximately $34.1 million in salary and would enable the Yankees to spend that money on other players. Rodriguez, who is six home runs away from tying Willie Mays for fourth all-time, is taking every legal step possible to prevent the suspension from being carried out.
First, he immediately appealed the suspension to an independent arbitrator, Fred Horowitz. Rodriguez argued the penalty is unwarranted given that he did not fail a drug test and that the implicating evidence consists mainly of accusations by Biogenesis and baseball officials. Alternatively, Rodriguez contends that the penalty is excessive, particularly since the CBA and Joint Drug Agreement seemingly call for smaller suspensions.
Rodriguez probably won himself no favors with Horowitz in how he acted during grievance hearings. At one point, Rodriguez stormed out and spoke on air with WFAN's Mike Francesca about his frustrations with the process, particularly Selig not testifying. Rodriguez's move was apparently designed to win support from fans, but it may have embarrassed Horowitz -- the one person who will actually decide Rodriguez' fate. Horowitz's decision is expected by the end of January 2014.
Rodriguez has also filed a lawsuit against Major League Baseball and Selig, raising similar arguments in his arbitration case but adding that baseball has strategically leaked info to interfere with his career. The case is being heard in a New York state court.
2014 Scouting Report
MLB's lawsuit against Biogenesis is a new weapon for league investigations into PEDs. It is a weapon that is outside of any collectively-bargained rule and thus can't be stopped by the MLPBA. The strategy is simple: rather than relying solely on a test to catch a player using PEDs, go after the player's supplier in court. The clinics have many reasons to settle, not the least of which is to avoid testifying on a topic that could implicate them in criminal drug activity.
Watch for baseball to sue, or threaten to sue, other clinics linked to players. The same may be said of other sports leagues where players are able to evade PED detection in testing. But this weapon saw its limits with Rodriguez, whose legal strategy will be greatly shaped by Horowitz's decision. Horowitz can uphold, reduce or overrule the 211-game suspension. The most likely outcome, in my view, is that Horowitz will reduce the suspension to as low as 100 games.
Three factors work in Rodriguez's favor: (1) he is a first-time offender; (2) baseball is relying on evidence shared by those who baseball claimed broke the law; and (3): the Joint Drug Agreement matches specific-game suspensions with infractions (50 games for a first offense etc.), whereas baseball's suspension seems heavily based on a different metric, the calendar: Rodriguez was suspended on August 5 for the remainder of 2013 and all of 2014, which happened to total 211 games.
Rodriguez's lawsuit will also a play a role in 2014. He would face an uphill battle to challenge Horowitz's decision, as it would be reviewed with great deference by a judge. Specifically, Rodriguez would have to show that Horowitz -- a highly-respected attorney and mediator --exhibited "manifest disregard of the law," meaning he ignored established principles of law. It is likely that Rodriguez would focus on Selig not testifying in the grievance hearings, but it's unclear why Selig had to testify. Rodriguez could offer a better legal argument that baseball's alleged leaks have damaged his career, but proving leaks is usually quite difficult. Journalists who may have received leaks from baseball officials will cite their "reporters' privilege" to avoid testifying.
Rodriguez has the money and apparent confidence to play out the legal process for as long as it can go. It could be a long, bitter path to the finish line.
3. Ed O'Bannon's class partially certified v. NCAA, setting table for historic trial
In November, U.S. District Judge Claudia Wilken certified a historic class action against the NCAA over its amateurism rules. These rules bar college athletes from profiting from their names, images and likenesses. The order means that, absent a settlement, Wilken will preside over a trial that could pave the way for college athletes to be paid. Wilken, however, also rejected a class action over possible damages stemming from broadcasts and video games.
The net result was a win for current and especially future college athletes, but a setback for past ones like O'Bannon and Sam Keller. Their class is now poised to only change rules going forward. O'Bannon's group did reach a $40 million settlement out of court with Electronic Arts and the Collegiate Licensing Company. The NCAA hopes to block the settlement, which if approved would compensate former college athletes.
2014 Scouting Report
A trial is scheduled for June 9, 2014. While both O'Bannon's team and the NCAA categorically reject the idea of a settlement, expect them to engage in settlement talks long before June 9. A plausible settlement is one that would permit NCAA athletes to enter into licensing and endorsement deals under strict conditions. This kind of settlement would also preserve amateurism rules that prevent colleges and universities from paying athletes and that, per Title IX, mandate schools treat men and women athletics equally. In essence, college athletes could be paid by an NCAA-approved group of third-parties and in NCAA-approved methods, but not by their schools. Neither side would be thrilled about such an arrangement but both sides would claim victory.
If instead the parties go to trial, any decision would be appealed by the losing side to the U.S. Court of Appeals for the Ninth Circuit, and the loser of the appeal would then petition the U.S. Supreme Court. If no settlement is reached, O'Bannon's case may not be resolved until 2016.
Regardless of the outcome in the O'Bannon case, hundreds of former athletes are expected to sue the NCAA for damages from past appearances in broadcasts, apparel and video games. Wilken's order only bars a class from suing for damages -- it has no impact on individuals or small groups suing. As SI.com recently reported, such lawsuits are expected to take place after the BCS championship game.
Separately, there will likely be formation of a college players' trade association, which would demand that ESPN, CBS, Fox and other networks that broadcast college games pay players for the right to do so. Do not be surprised if college athletes sue broadcast companies, several of which have filed court papers in support of the NCAA. One attorney for O'Bannon told SI.com in 2010 that a "natural progression" of the litigation would be to sue television networks that have entered into lucrative contracts to broadcast college games.
Only one thing is for sure: big-time college sports are about to change big time.
2. Aaron Hernandez charged with murder
In June, police searched Hernandez's house in North Attleboro, Massachusetts for evidence relating to Odin Lloyd, a friend of Hernandez whose body was found shot to death less than a mile from the house. Days later, Hernandez was stunningly charged with first-degree murder, which in Massachusetts carries a life sentence without the chance for parole, and with five weapons and ammunition charges. The Patriots swiftly released Hernandez, who has remained jailed since.
Implicating evidence purportedly includes ominous text messages, signs of a coverup (destroyed cell phone; tampered alarm system; decision to hire house cleaners), use of a nearby flop house and damning witness statements. Law enforcement believe Hernandez may have killed Lloyd to prevent him from talking about two other murders. In 2012, Danny Abreu and Safrio Furtado were killed in a drive-by shooting in Boston.
The Abreu and Furtado murders are the subject of a grand jury in Suffolk County (Boston) and it is possible Hernandez could eventually face charges for their deaths. Hernandez could face still yet other charges for the sale and distribution of guns. Dolphins center Mike Pouncey, a friend of Hernandez since they played together at the University of Florida, recently testified before a grand jury looking into gun sales and Hernandez.
Although the Patriots cut ties with Hernandez and even let fans swap Hernandez replica jerseys with other jerseys, the team remains connected to him. In October, the NFLPA filed a grievance, arguing the Patriots still owe Hernandez money under his contract, including $3 million in deferred compensation. Even if the NFLPA wins the grievance, the money may never go to Hernandez. He will have sizable legal fees and may have to pay Lloyd's family, who is suing Hernandez for wrongful death.
2014 Scouting Report
Local attorneys tell SI.com to expect a trial in late 2014, although pretrial disagreements could push the date back to spring 2015. Hernandez's case is not a slam dunk. The murder weapon remains missing. The two alleged accomplices, Ernest Wallace and Carlos Ortiz, can't seem to get their stories straight and may have been high on drugs the night of the murder. Hernandez's fiancé, Shayanna Jenkins, is not cooperating with police and has been charged with perjury. One potential witness, 27-year-old Tabitha Perry, recently died under mysterious circumstances. The case "around" Hernandez seems to be weakening.
Plus, Hernandez's legal team will retain top DNA and forensic experts for a trial. His defense will contend there is no way Hernandez would plan a murder and then foolishly leave the body so close to his home and in plain sight. Despite initial media portrayals of the prosecution's evidence as overwhelmingly persuasive, a unanimous decision by 12 jurors that Hernandez planned and carried out the murder is far from certain.
Prosecutors will likely fare better with the five weapons and ammunition charges. These charges carry a maximum 29-year prison sentence and a more likely sentence of six to 10 years. Hernandez could still face additional charges for the deaths of Furtado and Abreu and gun trafficking. If he's somehow freed young enough to resume an NFL career, he'd still face a wrongful death suit and convincing Roger Goodell -- or whomever is NFL commissioner by then -- to let him back in.
1. Pressure cooker bombs kill 3 and injure 264 at the Boston Marathon
At 2:49 p.m. on April 15, 2013, two pressure cooker bombs detonated about thirteen seconds apart on Boylston Street in Boston. The bombs caused large explosions that killed and maimed Boston Marathon runners as well as those cheering them on. The three killed were Krystle Campbell, Lingzi Lu and 8-year-old Martin William Richard. Because of the extraordinary courage and quick thinking of persons at the scene, victims were immediately rushed to nearby hospitals, where doctors saved lives and limbs. Because of the generosity of over 195,000 people from across the globe, $71.3 million has already been raised by One Fund Boston to help these victims and their families.
Identifying the bombers proved very challenging, but surveillance video and the coordinated efforts of the Federal Bureau of Investigations and the Boston Police Department led to the identification of two suspects. The two were brothers Tamerlan Tsarnaev (26 years-old) and Dzhokhar Tsarnaev (19 years-old). They quickly became the target of a massive manhunt in the Greater Boston area.
While on the run, the Tsarnaev brothers allegedly killed Sean Collier, a campus police officer at the Massachusetts Institute of Technology. Their attempted escape proved fatal for Tamerlan, who was killed by a combination of gunshot wounds and being driven over by a stolen SUV steered by Dzhokhar. Dzhokhar Tsarnaev was found on April 19. He was hiding in a boat parked in the backyard of David Hennessy, a Watertown, Massachusetts resident. After a firefight with law enforcement, he was arrested and hospitalized. In interviews with law enforcement, Dzhokhar Tsarnaev reportedly claimed that he and his brother had become self-radicalized and were not affiliated with a terrorist organization. However, he allegedly stressed, they had learned how to build bombs through resources promoted by al-Qaeda.
Dzhokhar Tsarnaev faces two types of federal charges: use of a weapon of mass destruction and malicious destruction of property resulting in death. He has pleaded not guilty to the charges, which carry the possibility of the death penalty.
2014 Scouting Report
By the end of January 2014, U.S. Attorney General Eric Holder is expected to announce if he will seek the death penalty. Tsarnaev may also seek to have the trial moved outside of Boston in hopes of a more favorable jury. A trial date for late 2014 is possible, but Tsarnaev's attorneys will try to push the date back. If Holder announces that the Department of Justice will seek the death penalty, Tsarnaev's attorneys might advise their client to authorize plea negotiations. One plausible plea deal would be for Tsarnaev to plead guilty, which would eliminate the need for a trial, in exchange for a life sentence instead of death.
Should it go to trial, the case against Tsarnaev appears extremely strong. There is reportedly an abundance of physical evidence, incriminating witness statements and an apparent admission. Tsarnaev's attorneys will likely assert that his statements to law enforcement are inadmissible because he was not warned of his Miranda rights. He was not told of his right to an attorney or his right to remain silent and not self-incriminate. Law enforcement, however, are not obligated to read a Miranda warning in a matter of urgent public safety. Here, prosecutors would argue that Tsarnaev reportedly mentioned in his police interview plans to bomb Times Square. He may thus have possessed information about future bombings. Even if Tsarnaev's statements are deemed inadmissible, he would still likely be convicted based on the wide range of other evidence.
With heightened security, the Boston Marathon will remain one of the most famous marathons in the United States. Don't expect smaller crowds for the 2014 race, which will be held on April 21. The Boston Athletic Association has increased the field size of runners by 9,000 to 36,000, and marathon watchers expect huge crowds of support. We shouldn't expect anything less from Boston Strong.
Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.