Reimer: Aaron Hernandez CTE case could be most damaging litigation NFL has ever faced

Alex Reimer
September 21, 2017 - 10:50 pm

Pool photo by Keith Bedford/The Boston Globe

Aaron Hernandez’s estate faces long odds in its case against the NFL. But this could still be the most damaging litigation the league has ever faced. 

Boston University’s CTE Center revealed Thursday that Hernandez was found to have Stage 3 of the degenerative brain disease. Researchers concluded it was “the most severe case they had ever seen” in someone Hernandez’s age. The disgraced ex-Patriots tight end was 27 when he committed suicide inside of his prison cell earlier this year while serving a life sentence for murder. His family donated his brain to BU shortly thereafter.

Hernandez’s attorney, Jose Baez, announced at a press conference Thursday he’s filed a lawsuit against the Patriots and NFL on behalf of Hernandez’s daughter, Avielle. The estate is seeking $20 million in damages for loss of parental support. 

In the suit, Baez argues the Patriots and NFL “should have known it was not safe for Aaron to continue playing football and that extending Aaron’s football career placed him at greater risk for neurological degeneration.” The document contests no specific scientific information was ever communicated to Hernandez. 

But since Hernandez only played in the NFL for three years, it will be difficult for his estate to draw a causation between his professional football career and CTE. 

“Hernandez did not play in the NFL for very long –– only for a couple of years,” sports attorney Daniel Wallach told in a phone interview. “And given the circumstances surrounding his life, and the acts he’s accused of committing, he doesn’t make for an ideal plaintiff. This is not the perfect plaintiff to advance this kind of case.”

The NFL may also try to argue Hernandez is part of the $1 billion class-action concussion settlement, which includes all living players who were voluntarily or involuntarily retired as of July 7, 2014. Hernandez was arrested for his role in Odin Lloyd’s murder in June 2013, but wasn’t convicted until April 2015. He was charged with double murder in 2014, stemming from the killings of two men in 2012. 

Since Hernandez wasn’t convicted of a crime when the concussion settlement was reached, it’s conceivable he still could have tried to continue his NFL career if he was found not guilty in the Lloyd proceedings. At the time, he was not retired.

The league’s strongest argument, Wallach says, is the lack of causation. The NFL will likely seek an early stage dismissal motion based on those grounds. But if that motion is denied, then the NFL could be in for its most harmful public relations crisis yet. 

“This CTE case could be the highest-profile of them all, because this is one that could potentially go to trial, or go to discovery at the very least, and could expose the NFL and the Patriots to an embarrassing discovery and information the league and the team wouldn’t want to be in the public domain,” Wallach explained. “Since the commencement of the concussion litigations in 2012, we haven't seen one deposition or any formal documents exchanged during discovery. The NFL does not want this information to get out there, because if it comes out in one suit, it would be fair game in other cases.” 

In other words, the NFL has a vested interest in this case not going to trial, even if it would likely win. Wallach predicts the league would look to settle with Hernandez’s estate if it’s unable to get the case thrown out. 

The interest in Hernandez far exceeds the levels seen in other concussion and CTE cases. The estate’s decision alone to go forward with the lawsuit strikes a blow to the NFL, before the paperwork even gets in front of a judge.

“This is the first lawsuit in which a player in his prime is the target,” Wallach said. “This is a warning call for this league and its players, and that’s the greatest threat it represents. This is putting a face on CTE.”