Hernandez, Pats, NFL could face civil suits in wake of Lloyd's murder

Monday July 8th, 2013

The family of Odin Lloyd could file wrongful death suits against Aaron Hernandez, the Patriots and NFL.

The first-degree murder charge against Aaron Hernandez is only the beginning of the legal aftermath of Odin Lloyd's death. Under Massachusetts law for wrongful death, families can recover damages from those who wrongfully kill their loved ones. Hernandez, who owns several properties and has earned more than $10 million playing in the NFL, is an obvious target of a wrongful death lawsuit. In certain circumstances, families can also recover damages from employers who negligently hire and supervise harm-causing employees. While a sibling of Lloyd declined to discuss with SI.com whether the family considers the Patriots or NFL in any way responsible for Lloyd's death, the family could at some point consider legal action against the team or the league. The statue of limitations for wrongful death suits in Massachusetts is three years.

Here's a look at the potential liability of all parties.

Potential Hernandez Liability

Through Lloyd's estate, Lloyd's family could sue Hernandez and argue that his negligence caused Lloyd to die. The standard for proving wrongful death is dramatically lower than what prosecutors must secure for a murder conviction. Essentially, Lloyd's family would have to convince a jury that Hernandez's conduct on the night of Lloyd's death was probably unreasonable and it probably caused Lloyd to die. Hernandez's intent or motive would not be at issue, only the reasonableness of his conduct and its relationship to Lloyd dying. If the evidence against Hernandez is as strong as Bristol County prosecutors maintain, Lloyd's family would easily meet this standard. Prosecutors, in contrast, have to prove beyond a reasonable doubt that Hernandez murdered Lloyd. In order to secure a first-degree murder conviction, they must explain why Hernandez would mastermind a murder in response to a mere argument and overcome the (to date) absence of a murder weapon.

Hernandez could also be forced to speak in a civil trial. While Hernandez testifying in a murder trial would be his choice, Lloyd's family could call Hernandez to the stand. Assuming a civil case follows his criminal trial, Hernandez would not be able to "Plead the Fifth Amendment" to avoid answering questions. In fact, though on the surface an odd result, Hernandez could be found not guilty for the murder of Lloyd but liable for his death. This outcome famously occurred with O.J. Simpson, who was found not guilty in his murder trial but the family of Ronald Goldman won a $33.5 million wrongful death lawsuit against Simpson.

Damages in a wrongful death suit against Hernandez could prove sizable and may motivate him to settle. Damages would include Lloyd's projected earnings over what would have been a normal life and how much of those earnings would have gone to family. They would also reflect family members' grief and loss of companionship, as well as any conscious suffering by Lloyd from when he was shot and when he died. Most concerning for Hernandez would be the prospect of punitive damages, which Massachusetts law does not cap when a death is caused by "the malicious, willful, wanton or reckless conduct or by the gross negligence of the defendant." Premeditated, intentional murder -- which Hernandez is charged with -- is the most likely type of death to result in significant punitive damages. When Simpson was found civilly liable, punitive damages accounted for $25 million of the $33.5 million jury award. An award in the millions could financially wipe out Hernandez, who will also have to pay hefty legal bills.

Hernandez can also not easily move assets and properties to others, such as his fiancée, Shayanna Jenkins, in order to avoid forfeiture from a civil suit. If he attempts to do so, a court might find that to violate Massachusetts' Uniform Fraudulent Transfer Act. Hernandez's pension from playing three seasons in the NFL, however, would likely be protected by the federal Employee Retirement Income Security Act. If Hernandez becomes a free person again, he might consider moving back to Florida. Florida law generally protects homeowners from losing their homes to pay off a civil judgment, provided the home is owner's principal place of residence. Simpson moved to Florida in part to gain that protection.

Potential Patriots and NFL Liability for Allowing Hernandez into the League

While Lloyd's family is well positioned to sue Hernandez, they are on weaker grounds to sue the Patriots or NFL. As a starting point, published reports indicate the Patriots and other NFL teams were concerned about Hernandez's background leading up to the 2010 NFL draft. Those concerns led Hernandez to fall from a likely first-round pick to the fourth round. NFL teams often hire private investigators to look into the backgrounds of college players, especially ones who might command an early-round selection. The Patriots and league may have known about Hernandez's ties to crime and yet nonetheless welcomed him into the league.

Then again, it is uncertain whether, and to what extent, teams knew specific information about Hernandez. Teams were clearly aware of Hernandez's marijuana use, but did they know about a reported bar fight in 2007, a shooting in Gainesville that same year or other actual incidents? Legal restrictions on access to juvenile arrest and court records would have made discovering certain information challenging if not impossible. It is also obvious that no team would draft a player who they suspect might moonlight as a murderer. The record on "what the Patriots and other NFL teams" knew, or reasonably could have known, is decidedly undeveloped and speculative.

The Patriots and NFL could also assert that eligibility for employment in the NFL is not exclusively governed by the league and its teams. A collective bargaining agreement with the NFL Players' Association establishes eligibility restrictions, including one that requires players be at least three years out of high school. Perhaps the NFL and NFLPA should agree to changes to eligibility that would make it more difficult to enter the league when there are character questions. Alternatively, the NFL and NFLPA might agree to link players' salaries to law-abidingness or restrict players' ownership of firearms. Those types of policies would have to be collectively bargained.

Potential Patriots and NFL Liability for Not Adequately Monitoring Hernandez while in NFL

Lloyd's family might contend that neither the Patriots nor the league took the necessary steps to curb Hernandez's alleged penchant for violence. The family might claim that there were warning signs or clues in Hernandez's own words that went unheeded. For instance, following the birth of his daughter last November, Hernandez openly mused how he "can't just be young and reckless Aaron anymore." At the time, it was thought Hernandez was probably referring to smoking weed or partying, but did the Patriots and NFL officials know otherwise? Should they have known otherwise? Along those lines, Hernandez's former teammate Matt Light recently implied he knew at least generally about Hernandez's problems. Light told the Dayton (Ohio) Daily News that he "never embraced -- never believed in -- anything Aaron Hernandez stood for." What was Light referring to? And in a league where 29 players have been arrested since Super Bowl XLVII, are enough team and league officials taking player misconduct seriously?

On the other hand, Hernandez had not been charged with any crimes as an adult until two weeks ago. Plus, even if it was clear the Patriots and NFL knew intricate details about Hernandez's troubled past, and even if they thought he might harm people, they would still be poised to prevail in any litigation. For one, they likely had no legal duty to protect Lloyd. At the time he was killed, Lloyd had no apparent relationship with the Patriots or NFL. He was not employed by either, nor was he a patron in Gillette Stadium or any NFL facility.

Also, Hernandez was clearly not acting in his capacity as a Patriot when he allegedly murdered Lloyd. It was late at night, during the off season, and Hernandez was not on his way to or from work. It is generally difficult to hold employers liable for crimes committed by employees while they are not acting as employees.

Lastly, there is probably some "hindsight bias" at play in growing criticism of the Patriots, NFL and former University of Florida coach Urban Meyer. Warning signs and clues often seem more obvious after the fact than they were at the time.

One thing is clear: Hernandez's murder charges and any accompanying civil litigation will be sure to spark reevaluation of the relationship between collectively-bargained rules and NFL player crime.

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.

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