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The Significance of Hernandez’s CTE Diagnosis

2017 September 22

On Thursday, news broke that Aaron Hernandez had CTE. While the fact that he had CTE is not surprising, the extent of his damage is. Hernandez had Stage III CTE, according to Dr. Ann McKee and Boston University. Providing more punch to the news, Boston University released the slides of Hernandez’s brain that shows the extreme deposition of tau protein in his frontal lobes. The frontal lobes control decision making, judgment, impulse control and many other important everyday functions.

In addition to the classic pathology found in CTE, Hernandez also had “early brain atrophy and large perforation in the septum pellucidum.” In other words, shrinking of the brain and a hole in an important relay station of the brain.

For only being 27-years old at the time of his death, the extent of Hernandez’s brain damage is truly alarming.

Post-mortem results like Hernandez and Jovan Belcher (25), both of whom were still playing in the NFL, or at least had the capability to do so, raise a very unsettling question of how many active players currently have brain damage this extensive? Should they continue to be exposed to brain trauma? Are their employers and the NFL turning a blind eye to the damage that is being done? Should the players be compensated more for the risks they are being exposed to? Should the NFL and owners provide lifetime medical monitoring for all players in order to detect CTE in the future? Should all NFL players who sign a contract automatically be entitled to a form of CTE insurance?

These and so many other questions demand answers. That is why the work of Boston University and the Concussion Legacy Foundation is so vitally important. Litigation is also a powerful tool to effect change.

Following the release of information that Hernandez had CTE, his legal team announced that they filed a federal lawsuit on behalf of Hernandez’s family against the NFL and the New England Patriots. (A copy of the lawsuit can be found here.)

The lawsuit is a long shot at best. It will have to survive numerous legal hurdles before the merits are even reached. Let alone a jury. But to be sure, Jose Baez and his team are known for beating the odds.

Here are a few early hurdles they must overcome.

The NFL and Patriots will first seek to have the lawsuit transferred to Philadelphia—the main battleground for the federal NFL Concussion Injury Litigation. On January 31, 2012, Judge Anita Brody was appointed by the Judicial Panel on Multidistrict Litigation (JMPL) to preside over all cases relating to “allegations against the NFL stemming from injuries sustained while playing professional football, including damages resulting from the permanent long-term effects of concussions while playing professional football in the NFL.” This formed MDL 2323.

In other words, this Order compels that any lawsuit against the NFL relating to concussions will be transferred to Judge Brody.

Although Hernandez’s team may oppose the transfer to the MDL, the odds are unlikely since this case falls squarely within the JPML’s Order.

Next, once Hernandez’s lawsuit becomes part of the MDL, the NFL and Patriots will seek to dismiss his case on two threshold issues: waiver and preemption.

Right out of the box, the NFL and Patriots will argue that Hernandez is a Class Member under the NFL Concussion Settlement. As a result, they will contend that his claim—including his daughter’s—was released by the class-wide waiver in the Settlement Agreement. They will assert that Hernandez was a “Retired NFL Football Player” on July 7, 2014 – the critical date under the Settlement that defines whether a former player is a Class Member.

In supporting this, the NFL and Patriots will have to argue that Hernandez “informally retired” when he was indicted on August 22, 2013 for the murder of Odin Lloyd. But this argument should fail.

As Michael McCann notes, Hernandez was not convicted of Lloyd’s murder until April 15, 2015—well after the July 7, 2014 cutoff date. Presumably, it was always Hernandez’s intent to beat the charges and return to the NFL. Thus, throughout this time, he was still “seeking active employment.” As a result, Hernandez was not a “Retired NFL Football Player” who released his claim under the NFL Settlement.

Once this issue is resolved, the next play will be for the NFL and the Patriots to move to dismiss the lawsuit under Section 301 of the Labor Management Relations Act—also known as preemption. This is the bedrock defense the NFL has asserted throughout the NFL Concussion Litigation.

This is where Hernandez’s legal team will likely meet their match.

While I personally believe the preemption defense is meritless, the NFL has had a significant amount of success convincing courts and creating case law supporting the argument that these types of claims are barred by the collective bargaining agreement because they require interpretation of the CBA. (Side note: Our legal team is the only one to beat it thus far.)

That is especially true, such as here, when a claim makes allegation about the failure to adopt “rules and league policies related to player health and safety” and/or preseason health examinations. Most glaringly, in Paragraph 76 of the Hernandez Complaint, they allege, “Prior to the 2010 NFL draft, and before the beginning of each football season, Aaron was examined by medical professionals associated with Defendants. Medical examinations of Mr. Hernandez during this period would have revealed cognitive impairment as Mr. Hernandez’s CTE worsened.”

But this walks Hernandez’s lawsuit right into the preemption trap. The NFL and Patriots will point directly to this allegation and argue—as they have ad nauseam in related cases—that this allegation is covered by Art. 39 § 1(c) of the 2011 CBA, and therefore triggers preemption. And with that, Hernandez’s lawsuit could be dismissed.

This is potentially a fatal mistake that his legal team should fix immediately. Indeed, the NFL has already released a statement highlighting the errors they see in the lawsuit. “On first blush, we believe it contains significant legal issues,” NFL spokesman Joe Lockhart declared.

In any event, whether or not Hernandez’s lawsuit is successful, this much is clear: CTE is real and it is clearly impacting even some of the youngest players in the NFL. This issue demands attention—not detraction or denial—if we want to have any hope in detecting and someday preventing CTE before it’s too late.

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