October 21, 2018
Sheilla Dingus
“Aaron Hernandez should be sitting in a therapeutic hospital receiving care for a profound brain injury. Instead, his ashes sit with his family. Suicide appears to be another result of C.T.E.” Those words were written in a New York Times op-ed authored by two law professors shortly after news of Aaron Hernandez’s severe Stage 3 CTE pathology was revealed in September 2017—news that shook the megalithic football industry to its core.
“In life, Aaron Hernandez weighed a muscular 240 pounds. In death, the most important part of his body was 3½ pounds.” In part six of Boston Globe’s deep profile of the enigma that was Aaron Hernandez, the narrative continued, “The damage was so extreme that some connection between it and Hernandez’s actions is undeniable: ‘It’s impossible for me to look at the severity of CTE and Mr. Hernandez’s brain and not think that that had a profound effect on his behavior,” Dr. Sam Gandy of Mt. Sinai Hospital in New York told the Globe after examining Hernandez’s pathology.
Aaron Hernandez was 27-years-old when he took his own life in a Massachusetts prison cell, as he served a life sentence for the murder of Odin Lloyd. A startling pattern of violent outbursts and troubling behavior shadowed the star tight end for the New England Patriots, but it was overlooked because of his remarkable talent on the gridiron until his downward spiral became a point of no return.
His five-year-old daughter, Avielle. seeks to hold the league responsible for her father’s death and her loss of his companionship, love, and support. Her lawsuit that began in Massachusetts state court was removed to federal jurisdiction and then consolidated with the NFL Concussion Settlement MDL in the Eastern District of Pennsylvania where her attorneys battle to have her case heard as the NFL’s attorneys counter to kill it on procedural grounds to prevent it from reaching a jury.
Young Avielle doesn’t blame the Patriots, for whom her father played during his 3-year NFL career for her father’s damaged brain. She believes the problem began when he started playing football at the same age she is now, and because of this believes her father began suffering the devastating effect of CTE long before he was drafted into the NFL. She does, however, hold the league responsible. She asserts that had the NFL not pushed a false narrative of football safety and pedaled defective research to the public her grandparents might not have placed her father in danger at the tender age of five and Aaron, had he realized the dangers might have chosen a different path before it was too late.
Avielle’s stance differs greatly from most previous lawsuits filed against the NFL, in that it’s not based on his time playing in the league. It doesn’t allege that he was improperly cared for as an NFL player; but instead his path to destruction was paved across the span his entire life as he followed the yellow brick road toward a dream of an NFL career—a dream that was based on lies and deception that eventually led to his death and possibly the deaths of others.
Avielle, referred to as “AH” in legal filings is represented by Baez Law and attorney Brad Sohn, who first began to develop these legal arguments in representation of the family of another twenty-something player, Adrian Robinson, Jr., who also committed suicide with a pathology of CTE following around 20 years of football exposure.
Avielle seeks to have the case remanded back to Massachusetts where it can be tried in front of a jury. The NFL seeks to kill it before discovery or remand can take place. This brings us to a duel fought through briefs filed on October 16.
Dueling Briefs
Two major issues before the court are whether LMRA preemption should apply and whether Aaron, and Avielle Hernandez are class members to the lawsuit that became the Concussion Settlement.
Preemption
In opposition to Avielle’s motion to remand, NFL attorney Brad Karp writes:
LMRA §301 preemption has been a go-to defense for the NFL, since lawsuits that entwine with interpretation of a collective bargaining agreement are preempted from civil litigation by federal law. The Duerson and Maxwell cases cited by the NFL were dismissed on LMRA preemption grounds.
Avielle’s case is substantially different from Duerson and Maxwell, however. In those cases, as well as others consolidated into the MDL that eventually reached settlement, the players or their survivors allege misconduct as to how concussions were handled by the league during their playing careers. Avielle alleges nothing remotely like this. Before diving into a treatise on Rule 12(a) and (b) preemption grounds, counsel for Hernandez remind the court that these claims have no relationship to a CBA as thoroughly briefed in their motion to remand.
Counsel emphasizes that in addition to claiming no rights derived through a CBA and Avielle having never been a party to one, defendants cannot assert claims that were never pled in order to invoke CBA preemption. “To the contrary, the Complaint very specifically alleges and supports—among other things—Defendants having undertaken a duty “to the general public”, at a time when the decedent was only a member of the general public.”
Nevertheless, the NFL pleads page-after-page of the boilerplate defense that has served them so well in the past, deliberately misconstruing the entire lawsuit.
The NFL’s brief is linked here. Even a non-attorney can easily see, the NFL’s efforts to misconstrue and rewrite the Hernandez complaint to their own liking. Karp attempts to address the pleadings by accusing Hernandez of contorting her own claims, but a plain reading of the complaint demonstrates the opposite is true.
The NFL fears the implications pled if they are taken at face value because pleadings of a responsibility to the general public open the door of liability to anyone who has ever played football, therefore they attempt to subvert the allegations by focusing on Aaron Hernandez’s three years in the NFL and what contractual duty they may have owed him as a player.
I could go line-for-line and say, “she never pled that,” but I will spare the reader. The evidence is linked for those who care to make their own comparisons with the plaintiff’s response to the NFL.
Recently a Northern District of California decision in a lawsuit filed by former NFLer Richard Dent was overturned by the Ninth Circuit. The Dent case alleged misconduct by the NFL regarding illegal use of and deception surrounding prescription painkillers administered to Dent and the other plaintiffs. Judge Alsup dismissed the case on preemption but the Ninth Circuit revived it, sta by concluding in their opinion that a complaint must be accepted and read as it is pled, and as such accepted its basis on torts not related to a CBA.
To the degree, Judge Brody might consider some relationship to t
he CBA, Dent has two primary points of reference for guidance. First, and perhaps most important, any claims against a CBA must be derived solely on the CBA and not through state and federal law. Parties to a CBA may bargain for more than federal or state laws require but they cannot bargain for less or what is illegal.
Judge Susan Nelson of the U.S. District Court of Minnesota, who is presiding over an MDL of consolidated brain injury claims brought by NHL players concluded similarly, denying the NHL’s motion to dismiss on preemption.
Judge Brody has yet to rule on a preemption motion in any of the brain injury lawsuits under her jurisdiction. She appeared to delay a ruling in the litigation which eventually led to settlement, likely to encourage settlement. She may take the same approach here, although due to the different character of the allegations, it would seem proper to simply deny the NFL’s motion and allow the case to proceed.
Class Member Status
As I wrote previously, the NFL’s assertion that Aaron and Avielle Hernandez are members of the settlement class appears to be the biggest hurdle Avielle’s lawsuit will have to overcome. Brad Karp, for the NFL, writes:
According to a technical reading of the settlement language defining a class member, Karp would seem at first glance to be correct.
In his response to the NFL’s tactics to misconstrue and rewrite Avielle’s lawsuit to their own liking, her attorney Brad Sohn fires back with a stinging rebuke.
Sohn establishes that Aaron Hernandez was not a retired player and as such hoped to see his conviction overturned and return to the NFL. Hernandez engaged, in grievances regarding pay withheld by the Patriots represented by NFLPA attorneys who have pointed out many times that they represent active and not retired players. Hernandez didn’t retire, nor was he banned by the league as indicated by Sohn.
He then offers evidence of Aaron Hernandez’s intent.
In response to prior pleadings in which the NFL claimed a return by Hernandez to be “implausible,” Sohn reminds them of their “rich history of colorful second chances.”
Just prior to his death, Hernandez had been found not guilty in a second murder trial and was awaiting appeal of the Lloyd conviction. Had he survived, and the conviction been overturned, it would hardly seem a stretch to think that a team would have passed on one of the best tight ends in the league who was still in his prime—ownership would likely have given him the same green-light as the other players who’ve traveled “redemption road.”
Sohn, then asserts that Avielle’s claim is completely independent of any relationship her father had with the NFL.
At this point the issue of notice comes into play. When a class action is certified to be “fair, reasonable, and adequate,” members of the class are to be noticed and provided the opportunity for inclusion or the ability to opt-out of the settlement. While it’s possible, it appears improbable that Hernandez was included on the mailing list of retired NFL players provided to settlement class counsel for noticing. Incarcerated inmates do not have the kind of access to internet ads, email, and probably even TV for additional or alternate forms of notice required by the settlement.
Regardless of whether Aaron received notice, Sohn asserts that Avielle’s claim is completely independent of any relationship her father had with the NFL.
Conveniently the NFL seems to retroactively force young Avielle into the class and then adding insult to injury, labels her merely a derivative rather than representative claimant, all but guaranteeing no path for the child’s recovery.
“Although the Defendants correctly state that settlement class members were found by the Court to have received due-process-compliant notice and opportunity to both object or opt out,” writes Sohn, “they fail to demonstrate how the toddler-plaintiff here—whom they never claim was a class member in 2014—also enjoyed these same safeguards. She cannot be treated as a class member unless she received the protections that class-members received.”
Avielle’s counsel asserts that the NFL has jumped the gun on proceeding with Rule 12(b) defense motions before proper jurisdiction has even been established, and the low probability of the NFL’s ability to assert federal preemption in view of the recent ruling in Dent.
I’ve always been fond of the footnotes found in legal briefs and this one is no exception. Mr. Sohn identifies a litany of cases against the NFL or one of its teams where preemption was deemed to be improper.
Sohn then dives into contract interpretation and how arbitrarily forcing Aaron Hernandez into a “retired” classification in order to deem him a class member prejudices other players who may have been off a roster in the summer of 2014 but never considered themselves to be retired.
While defendants have not provided any evidence to support Aaron Hernandez’s status as a retired player, they have somehow (in one of the best lines from the brief) transmogrified his daughter into a derivative claimant.
Just as the Massachusetts doctrine of abatement ab initio exonerated Aaron Hernandez of his murder conviction in death, it appears that another Massachusetts law may confer independent standing for his daughter to pursue her loss of consortium claim.
The brief ends with a sharp rebuke of the NFL’s tactics and their determination to prevent Avielle from seeing her day in court. “This case does not relitigate debates over line-drawing nor the fairness of this historic settlement; it opposes an attempt by Defendants to get extra-credit for settling separate cases. Defendants want to apply their credit for their separate agreement—to resolve a large but distinct swath of cases with others—here, to A.H. And they want to do it in jump-the-gun fashion to ensure there will be absolutely no chance of discovery. But that simply is not how the law operates. Defendants indeed get a certain amount of credit for their choices: anyone bound by the settlement has foregone the right to sue these Defendants elsewhere, and based on nearly anything related. That group may well include the other subjects of Defendants’ motion; but it does not include A.H…Had Defendants agreed to include A.H. within its set of compensated cases, or evinced a position that her father, mother, and she were putative class members (such that they had notice of the class settlement and opportunity to object), then she would likely would not be here. Her action exists because Defendants want to snuff out her rights and not pay her a dime.”
Bottom Line
Avielle’s claims have been painfully contorted by the NFL, but this comes as no surprise. Similar claims could have been pled by the daughter of a 40-year-old construction worker who never played in the NFL or even college. Aaron Hernandez’s history presents a person who played youth football beginning at age 5, continuing through middle school and high school, accumulating 13 years of football exposure before he began playing at the college level, much less his 3 years in the NFL. It’s the early years of football exposure that Avielle seeks accountability for, and the daughter of the theoretical construction worker who may have shown similar symptoms could make the same claim if pathology revealed CTE at his death.
The NFL realizes that if its breach of duty to the public is placed on clear display in the public eye, they face an existential threat; therefore this five-year-old child stands to become the David to their Goliath.
If the court evaluates the lawsuit at face-value and remands it back to state court where a jury rules in favor of the plaintiff, this suit will be far more damaging to the NFL than every claim in the concussion settlement combined, based on the discovery that will take place and the precedent for any football player damaged by CTE to hold the league accountable for its deception.
A quick settlement for the NFL would make sense in order to avoid opening the Pandora’s Box they’ve fought to keep sealed for decades. The wildcards in play are Judge Brody’s view and if she does not dismiss the case, will the NFL continue in its scorched earth, take no prisoners guerrilla tactics, or will it quietly settle to make this case disappear as it did numerous opt-out cases over the past month. We do indeed live in interesting times.
