Hernandez estate lawsuit faces long odds, but Pats, NFL may want to settle, expert says
By Travis Andersen Globe Staff,September 22, 2017, 9:44 a.m.
Former New England Patriots star Aaron Hernandez, who was convicted of one murder and acquitted of two others, suffered from chronic traumatic encephalopathy, his lawyers said Thursday at a news conference.
The National Football League and New England Patriots will fight hard to get the Aaron Hernandez estate's concussion lawsuit dismissed, but they could have an incentive to settle if that strategy fails, according to legal experts.
"The NFL will fight tooth and nail to get this case thrown out of court," said Daniel Wallach, a prominent sports law attorney based in Florida, said Friday by phone.
His comments came one day after lawyers for Hernandez's estate filed a $20 million lawsuit against the league and the Patriots, on the grounds that both parties failed to protect Hernandez from the effects of chronic traumatic encephalopathy, or CTE, a brain condition linked to concussions and repeated blows to the head.
Wallach, who has advised top athletes and pro franchises, said the league probably will cite a number of factors in its bid to get the suit tossed, including the exclusion of any players who retired on or after July 2014 from signing onto a prior class-action concussion settlement expected to top $1 billion.
Hernandez was in jail awaiting his first murder trial in July 2014, and the league could argue he fell into the retired player category because he had "no reasonable expectation" of resuming his playing career, Wallach said.
In addition, he said, the league will cite the full scope of Hernandez's football career going back to his youth Pop Warner days, as well as his violent tendencies that predated his selection by the Patriots in the 2010 draft.
The team released the once-promising tight end immediately after his June 2013 arrest for murder.
Michael McCann, an attorney and founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law, agreed that Hernandez's estate faces challenges.
"These are difficult cases to bring, that a finding of CTE proves liability against the NFL," he said.
At the same time, McCann added, the league might be tempted to settle if it can't get the case dismissed, to avoid turning over documents in a protracted legal battle.
"It's still a potentially threatening lawsuit to the Patriots and the NFL," said McCann, who is also a leading expert on the Deflategate saga. "We know the Patriots are known to be private about various issues."
So is the league, Wallach said.
"Five years into this overall concussion litigation, one thing the league has been very successful at is keeping its executives off the witness stand, avoiding testimony under oath, and not having any of its so-called treasure trove of documents in the public eye," Wallach said.
But a third expert, Andrew Brandt, said he doesn't see a settlement on the horizon.
"My sense is they would not settle, as they would have a lot of defenses around Hernandez's lifestyle and his short career in the NFL compared to other levels of football," said Brandt, who heads the Moorad Center for the Study of Sports Law at Villanova University.
Hernandez was acquitted in April on charges of killing Safiro Furtado and Daniel de Abreu in a drive-by shooting in Boston in 2012. Five days after the acquittal, the 27-year-old Hernandez hanged himself in his prison cell at Souza-Baranowski Correctional Center.
He was serving a life sentence for the June 2013 killing of Odin L. Lloyd. A judge later vacated Hernandez's first-degree murder conviction in the Lloyd case because Hernandez had not exhausted his appeals at the time of his suicide. Bristol County prosecutors are challenging that decision.
The league, citing Hernandez's criminal history, vowed Friday to vigorously defend itself against the lawsuit.
Material from The New York Times was included in this report. Ben Volin and Milton J. Valencia of the Globe Staff contributed to this report.