DHK - SI's Michael McCann on the merit of the Hernandez estate lawsuit against the NFL

Dale & Keefe
Friday, September 22nd

Michael McCann, law professor at UNH and legal analyst for Sports Illustrated joins us to cover all the legal angles of the Hernandez Estate lawsuit against the NFL.


Transcript - Not for consumer use. Robot overlords only. Will not be accurate.

When you look at the loss of what he wanted to expect him to come out of this lawsuit here. Well first of all were hoping that we would be able to get discovered and alert. And that's that's the thing that everyone should be rooting for is that we can learn more about this disease learn more about what the NFL knows we'll know more about the medical history of Eric Hernandez of what the patriots knew so education is key here. That's attorney Jose Baez who was appearing earlier today on ESPN. Pardon me I'm pushing my DS button over here you'll what they're worried about his discovery and learning more it's also the all million dollars is secondary here. Joining us is he does whenever we've got sports legal questions to discuss. Michael McCann from Sports Illustrated and SI dot com hello Michael how are you. I'm doing great thanks we have learned through the years whether it was the OJ verdict or the double murder verdict in the Aaron Hernandez case there are no absolutes there are now. There is no chance this will happen. What's the numerical chance that this lawsuit ever gets to trial. I would say under. 3%. Maybe about 1%. Businesses and try to Vick case that a whole bunch of reasons is very unlikely. To ever go to trial one of which is that there's a pretty good chance to get dismissed. And we know that the patriots and NFL have a number of likely. Solid defenses against this case including. Something called preemption that the collective bargaining agreement preemptive claim because in order to it challenged the NFL over health this year to arbitrate first. Then there's Massachusetts workers' comp laws then there's cause it then there's the issue of causation and there's issues assumption of risk there's a Russian defense does that exist. And even if he gets passed a motion to dismiss. At that point I take the patriots and NFL would be very poised to settle because at that point can delete doesn't want to share information. In terms of its science in terms of its medical records the patriots don't want to share information about for instance how well Aaron Hernandez comprehend the playbook. How do you we figure that out what the pitchers have to share their playbook. I cannot imagine that the pitchers who want Bill Belichick testifying under oath about. His impressions about Aaron Hernandez so. Dale we get passed a motion to dismiss and this case gets satellite could just be shocked receive our current trial. Now for the by his team obviously they'd love to win the case. But as you point out to be difficult to even get it to that that stage. So do you think the ultimate a goal for that that team is to get a settlement. Yeah Michael in my view it's definitely the goal they believe they can just get passed a motion to dismiss. Then there in the cold concede because at that point they know. The NFL's patriots are gonna wanna cut a deal. So once they get it if they get past that that's a huge hit and they're frankly not likely to but if they do get passed a motion to dismiss. Then they are in a position where they have bargaining leverage. They know that the NFL doesn't wanna share its record about how we know that because of leaked cut a deal. With over 20000 retired players to settle the concussion litigation. We know that some players opted out of their pursuing their own case he put the league. Doesn't want to litigate this like for instance the NHL NHL has concussion litigation. What we've seen records revealed recent email shared the NFL is seemingly afraid of and I can't imagine that they would deviate from that approach that they've had with over 20000 players to to fight against Aaron Hernandez's family. We've heard now for years about the NFL and the concussion lawsuit that so many players are and vaulted. It was Aaron Hernandez a part of and if so how could that affect what's going on now. Damage I don't think he was because in order to be eligible for that. Back to class settlement a player had to retire by July 7 2014. Fernandez was in jail at that time facing the Oden Roy trial he had not as far as I know. Retired from the leak I assume that he isn't what it was hoping. QB found not guilty of that and then of course we found not guilty the other. The Boston murders were you discharged in May of that year so he. Still was active in the sense that he had yet formerly retired in because of that he wouldn't be considered part of the costs. I do this at my apparel but let me challenge you on something here Michael you said that you think that if it got to that stage the patriots in the NFL would settle. I would suggest that's the last thing they would wanna do because it could open a floodgate of possible cases from that point on. Maybe but I think they've settled all the other players right that day they didn't want to share discovery that they have a track record of doing that and it I think the league has factored in into the business model that it's gonna get sued by retired players over concussions. This is an unusual case because of a Hernandez what he did. And in his life story but. The concept of the cases similar in that it's it's says it's. A family of the priciest player a player committed suicide similar to the junior sale fact pattern. And the NFL. One struck a deal is definitely but they opted out of the settlement. I didn't do I don't think the league wants to share information about its records. On any level regarding concussions I think the league views itself as former coal and I think it's willing to pay a premium tap case Google. If we wanna be technically coral correct legally correct. We can't call Aaron Hernandez a a murderer. And I've got that makes me wonder about the abatement and a key just tell us by what the logic was behind it seems like such an outrageous. Law they have on the books what was the whole point of it and if you notice please share with us than a lot of people people wonder about that. Yes so he's not not a convicted murderer to his convictions were vacated. Think because they had to be under Massachusetts law there's a principal called abatement and Bateman says and so many words. That when a defendant who's been convicted but has appeals pending guys. The presumption is that we want to give the benefit of the doubt that person and maybe they would have won their appeals to their criminal record is clear at least in terms of convictions. So the logic there is that maybe Hernandez would have wanted to appeal and that we wanna give them the benefit of the doubt. It's a problem with the assistance of course he was very unlikely to win his appeal deodorant Lloyd case. And the fact that he may have committed suicide being aware of this principle and it wouldn't be surprised ladies and prison. I'm sure he could have heard about it. And by hearing about it he probably heard that he would be a lot easier to pass on his estate to his daughter. He would be a lot harder for the families. A vote in the latest effort of for part of it and others to bring civil case is over things that he did or allegedly did. And it is the principle of giving a benefit of the doubt to. But somebody was appealed haven't been heard I think in this case at least two or really unfortunate outcome because it it seems to reward Hernandez for committing suicide. If there is an account the settlements say between your area and as side with the NFL and the patriots. Can then they also go to the NCAA in the Florida Gators or is that that kind of there's no more chance of that. Yeah person could they still could files that were case I think the more likely trajectory there would be to add and I think Jose Baez mentioned as a cue that. The NCAA for a maybe pop Warner football that you personal high school. As co defendants in the case and now and it's true that's actually make the case a better case in a sense in that. Right now the pitcher to never falcons say how can you show that he got seats he loved playing in the NFL or how could you show that most of it occurred. When most of his career occurred prior postal poker could play a private plane to the patriots so. In a way. My feeling is that Jose Baez wants to try to. Work out a settlement with the NFL and the patriots rather than have more complicated case but. He may ultimately be forced to add those other parties as co defendants. We're talking Mike McCann Sports Illustrated and SI dot com I'm looking at page one of the lawsuit that was filed. And the opening line says Abby L Hernandez by and threw her parent and guardian shy on a Jenkins. Was it written this way was it filed this way. So that if they did end up with money they could protect it from any potential civil suits that might be filed in the future. Yes so and so is as good as part of the strategy there that it would go directly to her that it wouldn't go to his estate and then that's significant because over and Lloyd. Stanley. And others that have brought to civil litigation or go after Hernandez's estates and this is one way of getting the money directly to his daughter. And making it less vulnerable to forfeiture. You know we we talked before the double homicide. Double homicide charges. I guess Aaron Hernandez and we didn't think he had any chance of being acquitted there any was. You think his attorneys. Baez and his team. Does that factor into it I mean obviously if you can afford. The best attorney you go ahead and get them but. Do you do you think his chances are greater or that's the State's chances are greater because of the attorneys that they have. That's really a question my as a lie I would say. I'm sure the NFL's patriots are mindful that Jose Baez has had a successful career that he was able to. Win a case that. Most people thought. What are sure fire loser the Boston double murders and then and also we he had Ronald Sullivan to Harvard Law School professor is part of a legal team as well. And these two guys are obviously really impressive and I think that if you're the patriots and NFL. You know that these are serious attorneys that. Probably had the financial wherewithal to play out the long game in this case they're not looking to cut a deal quickly and that gives them a little more leverage. Now I don't know how important this is in the in the grand scheme of things but twenty million dollars of the of the lawsuits for an assist for the NFL and the knowing the patriots. So no matter what the number may end up getting down to is that somebody had split between the two or they feel that the NFL is more responsible than the team that he was on how how does that work. It could default presumption would be its split evenly. Unless there's some type of indication during the trial so that is gonna happen that it should be divided up otherwise. Final question from me and Michael and I were exchanging text messages this more because I was trying to get some information I can bring to the table here. And and the research that I that I found is that because this was filed in a federal court. They have what they call a dole bear hearing this is still bear vs Dow Chemical. It says it's in effect it's a much stricter guidelines. For for expert witnesses at the federal level and they're trying to guard against junk science. Did buy is make a mistake by filing this in federal court where that the restrictions are much greater in the witnesses that he can bring to the table. He had to pick really a question I I think it would have been filed probably its state court just because that typically. That's where this kind of case. What do code at my age but if they're they must have done the analysis to believe that this would be a more favorable. Four of them and it's true that any extra witnesses can be challenged. And I think we're gonna get to a point where that issue comes up I think we'll likely see a resolution to this case. Before that but it certainly presents a wrinkle to the case that otherwise couldn't exist. Michael we always appreciate the expertise the time and as I say every time we have one of these discussions we will never run out of chances to talk. They're definitely nobody these issues never seemed to have. Thanks Michael got back. Michael McCann Sports Illustrated and SI dot com lending his expertise. Other. Legal experts have also talked about that the chances of this ever ending up in a trial being being pretty slim. I'm not just Michael Michael obviously you know has set it as well and written about it I know Mike Florio suggested on pro football talk dot com and for people who don't know Mike Florio is a lawyer. Music trained lawyer he his his real job now is pro football talk dot com. But he talked about the settlement of the big class action settlement on behalf of all retired players. We don't believe the Hernandez. Family opted him out. Which is what they would have to do to be able to file a lawsuit. I'm sure that wasn't a toppled mind they and other legal issues on their on their plate to deal with they didn't opt out like the sale family did write the sale family opted out of the settlement. We don't get any money from that settlement and now we're gonna sue used separately. We don't believe Fernandez did that which is why Florio thinks this is gonna get bounced as soon as it hits the a judge's desk. But that's Sunnis and there rape because in McCants say he doesn't believe that he might even be life as I understand it now again if he didn't retire then he's not in there needed any doubt that he can't retire disarmament armored are higher now now he's got cut and I was by fourteen and so while he was done and I think he's trying to play this. Well the court system out there I'm Betty and I via a cancer. Yeah he got cut. And then he's an in custody and I don't know if there were. Camera follow our retirement papers with the National Football League that was not on his mind now at all. 6177797937. As telephone number has been too tight on our screen here while we were talking McKinney may not be a murderer. But he still a killer. Probably the as deep the distinction we're looking for dale Hollywood keeps Sports Radio W media.