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  • The NFL and the Patriots could be forced into revealing damaging information if a lawsuit is filed against them after Hernandez's diagnosis of CTE.
By Michael McCann
September 21, 2017

Was Aaron Hernandez a murderer and a victim of suicide because he suffered from Chronic Traumatic Encephalopathy (CTE)? Are the New England Patriots and NFL liable for Hernandez’s CTE?

These and related questions now take on legal significance.

On Thursday, attorney Jose Baez, who along with Harvard Law School Professor Ronald Sullivan successfully defended Hernandez in his Boston murder trial in April, announced that Hernandez’s fiancée, Shayanna Jenkins-Hernandez, has filed a federal lawsuit against the Patriots and NFL on behalf of her and Hernandez’s four-year-old daughter, Avielle Janelle Hernandez. In her complaint, Jenkins-Hernandez contends that the Patriots and NFL were negligent in their care of Hernandez. The family demands that the Patriots and NFL should pay Avielle $20 million in damages for loss of parental consortium.

The possibility of such a lawsuit was extensively covered in a Sports Illustrated article published in April. That possibility is now a reality.

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Jenkins-Hernandez’s lawsuit follows an autopsy examination of Hernandez’s brain by Dr. Ann McKee, Professor of Pathology and Neurology at Boston University School of Medicine and Director of BU's CTE Center and Chief of Neuropathology. According to this examination, Hernandez suffered from Stage III CTE. CTE ranges from moderate (Stage I) to most severe (Stage IV). A second pathologist confirmed Dr. McKee’s Stage III finding. According to these results, Hernandez suffered from “early brain atrophy, or shrinkage, and large perforations in the septum pellucidum, a central membrane.”

CTE has not been associated with causing a person to commit murder—but has been linked to suicide

Before going further, it is worth stressing that CTE has not been linked to propelling a person to become a murderer. Hernandez, of course, “was” a convicted murderer. Yet posthumously, he no longer has that distinction.

Let me explain.

In 2015, a jury convicted Hernandez of first-degree murder in the death of former semi-pro player Odin Lloyd. Hernandez, along with two conspirators, picked up Lloyd at his Boston home late one night in June 2013 and then drove him to an industrial park near Hernandez’s home in North Attleboro (Mass.). Hernandez then shot Lloyd—who had dated the sister of Jenkins-Hernandez and was known as Hernandez’s “blunt master” for supplying him with marijuana—six times.

Despite this conviction, Hernandez is no longer considered a convicted murderer under Massachusetts law.

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In May, Massachusetts Superior Court Judge Susan Garsh vacated Hernandez’s murder and accompanying firearm convictions on grounds that Massachusetts recognizes “abatement ab initio.” Recognized in Massachusetts and several other states, this legal principle requires a judge to vacate defendants’ convictions when their appeals had not yet been heard at the time of death. The underlying logic is that the appellate court might have reversed the convictions had those appeals been reviewed. Hernandez’s appeal remained undetermined at the time of death.

Even though Hernandez “caused” his own death by taking his life while at the Souza Baranowski Correctional Center in Shirley (Mass.) in April, abatement for defendants who commit suicide is still enforced in Massachusetts.

Abatement has important legal significance beyond clearing Hernandez’s criminal record. For one, it means that victims of Hernandez cannot rely on his convictions in their civil lawsuits against Hernandez’s estate. Abatement also makes it more likely that Hernandez’s estate will be able to transfer assets to Avielle.

Of relevance to Hernandez, CTE has been linked to an increased risk of suicide, along with aggression, depression, memory loss and other conditions. Hernandez was also not the first former NFL player with CTE to commit suicide. Another former Patriot, Junior Seau, committed suicide in 2012. Seau’s family sued the NFL for wrongful death, arguing that the league knowingly concealed the danger of CTE from Seau. Seau’s family opted out of the 65-year and approximately $1 billion class action settlement between the NFL and roughly 20,000 retired NFL players. By doing so the family can continue their case against the NFL.

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Many legal hurdles for Hernandez’s family to prove that the Patriots and NFL were responsible for Hernandez’s death

In convincing the U.S. District Court for the District of Massachusetts that the Patriots and NFL were legally responsible for Hernandez’s suicide, the Hernandez family would face a number of significant obstacles.

I. Preemption

First, the Patriots and NFL are poised to argue that the claims are preempted by the NFL’s collective bargaining agreement. The CBA dictates that current and former player grievances over health matters must first be arbitrated. Only after an arbitrator reviews the disputed health claims and issues an award can the claims be reviewed.

The preemption defense is generally considered the NFL’s strongest legal defense in concussion-related lawsuits brought by former players. The league especially likes it because it can compel a judge to dismiss a lawsuit before NFL officials are required to testify under oath or share damaging evidence.

Whether the preemption defense is as powerful in the Hernandez case remains to be seen. Hernandez’s capacity to arbitrate a health grievance while behind bars for first-degree murder is uncertain. If he could not arbitrate then the preemption defense would be less relevant to the case.

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II. NFL concussion settlement and relationship to claims about Hernandez

On a related point, the Patriots and NFL might argue that claims associated with Hernandez’s death were consumed by the NFL concussion settlement. Whether Hernandez was part of the concussion settlement isn’t clear. The settlement covers players who were retired by July 7, 2014 and also players who, by that date, weren’t under contract with an NFL team and weren’t seeking active employment with a team. Hernandez presumably had not retired by July 7, 2014, as he had not yet been convicted of Lloyd’s murder and was only 24 years old at the time. Had he been found not guilty of Lloyd’s murder and then defeated the charges for murdering Daniel de Abreu and Safiro Furtado (he was indicted on those murder charges on May 15, 2014), Hernandez—in theory, at least—could have sought to resume his NFL career.

Hernandez, however, was no longer a Patriots employee in 2014 and he could not have sought active employment with another team while behind bars. Then again, the NFLPA had continued to represent Hernandez in grievances with the Patriots over money allegedly still owed on Hernandez’s contract—just like the NFLPA had represented Michael Vick’s contractual interests while Vick was incarcerated for his role in a dogfighting conspiracy. From that lens, a player behind bars maintains a form of contractual relationship with his previous team.

Hernandez’s relationship to the concussion settlement could become a contentious matter in court.

III. Lack of Causation

In addition to preemption and timing, the Patriots and NFL are poised to argue a lack of causation. This is true on two counts.

First, the defendants can contend that before he played his first down for the Patriots in 2010, Hernandez had played thousands of downs while at the University of Florida, Bristol (Connecticut) High School and in Pop Warner Football. It’s unclear, the Patriots and NFL are poised to contend, to what degree Hernandez’s CTE reflects his play in the NFL versus his play at other levels. To address that issue, Baez might eventually name the University of Florida, the NCAA and other entities that facilitated Hernandez’s football career as co-defendants. Baez could then contend that it is the responsibility of the various co-defendants to divide blame.

Medical evidence of Hernandez suffering from concussions at his different levels of football is clearly relevant to this analysis, though many physicians believe that CTE also reflects sub-concussive (and typically unreported) impacts. Further, given that the medical community’s understanding of CTE remains a developing topic, it’s at least theoretically possible that CTE could be linked to non-football conditions, such as environmental toxins or even certain kinds of drugs. Any factors that create doubt as to how Hernandez suffered from CTE would be meaningful if the Hernandez family lawsuit went to trial.

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Second, even if Hernandez’s CTE exclusively reflects his play in the NFL, the Patriots and NFL can insist that it did not cause Hernandez to commit suicide. Some have described Hernandez as a sociopath and mentally disturbed. Whether or not those depictions are true, it’s clear that Hernandez suffered from mental issues that may be unrelated to neurological problems associated with playing football.

IV. Assumption of Risk

The Patriots and NFL can assert that Hernandez assumed the risk of neurological harm by playing in the NFL. Assumption of risk is a more complex defense in the NFL than it might otherwise seem, particularly if a former player or his family can prove that the NFL fraudulently concealed health information from that player or, through a coach, knowingly exposed him to an unnecessary risk by keeping him in a game after a head injury.

Still, assumption of risk is a relevant defense because there are certain obvious dangers by playing in the NFL: the players are large and fast and collide with one another. All players are on some degree of notice that playing in the NFL is potentially hazardous to their health.

V. Massachusetts Workers’ Compensation Statute

As argued in other concussion-related litigation against the NFL, a workers’ compensation statute might prevent recovery for injuries sustained by Hernandez while in the NFL. The Massachusetts Workers’ Compensation Statute details the state’s system for workers’ compensation. This system requires employers to carry insurance that promptly compensates employees who are injured on the job. In exchange, those employees relinquish their right to sue their employer for negligence related to their workplace injuries.

The Massachusetts workers’ compensation statute preempts a wide range of potential legal claims against an employer. In a 2014 decision, Justice Barbara Lenk of the Massachusetts Supreme Judicial Court wrote, “so long as the injuries were sustained while the employee was acting in the course of her employment … actions for negligence, recklessness, gross negligence, and wilful and wanton misconduct by an employer are precluded by the exclusive remedy provision.”

To overcome this statute, Baez might assert that Hernandez was only “on the job” because of (alleged) fraud by the Patriots and NFL in not adequately advising Hernandez about the risks of playing in the league and not adequately treating his health issues. Baez might also contend that Hernandez’s CTE worsened while away from work—meaning while he was not acting in the course of his employment—because he was not on notice from his employer to take precautions in his life.

Workers’ compensation may prove to be a more effective defense for the Patriots than the NFL. Hernandez was an employee of the Patriots, not the NFL. The NFL, however, could assert that Hernandez’s employee relationship extended to the league given that Hernandez’s employment was governed by the collective bargaining agreement between the NFL and Hernandez’s union, the NFLPA. 

A lawsuit could still damage the reputations of the Patriots and NFL and potentially lead to Robert Kraft, Bill Belichick and Roger Goodell having to testify under oath

As explained in the preceding section, the Patriots and NFL are strong favorites to defeat the Hernandez family’s lawsuit.

The problem for the Patriots and NFL is assessing when they would win.

If the Patriots and NFL’s preemption defense (discussed above) fails, there is a real possibility that the lawsuit would not be dismissed. In that scenario, the case would move to pretrial discovery. This phase of the lawsuit would require the Patriots and NFL to share evidence about Hernandez. Likely evidence would include team and league health records, notes, emails, texts and other recorded impressions about Hernandez.

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Pretrial discovery might also require the Patriots to share information about how well Hernandez understood his job—meaning Belichick might be required to turn over plays and offensive schemes that involved Hernandez. Likewise, Patriots’ evaluations of Hernandez before they drafted him and before they signed him to a $40 million contract extension may be discoverable.

As part of pretrial discovery, Baez would surely demand to question Patriots and league officials about their knowledge of Hernandez’s health conditions. No doubt, Baez would demand to depose Belichick. He might also seek testimony from Kraft and, conceivably, Goodell.

This dynamic could lead the Patriots and NFL to try to negotiate a financial settlement with the Hernandez family. This is true even if the team and league firmly believe they would ultimately prevail. If defendants have information they want to keep confidential, sometimes they have to pay the plaintiff to preserve that privilege.

Michael McCann is SI’s legal analyst. He is also an attorney and the Associate Dean for Academic Affairs at the University of New Hampshire School of Law.

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