Hernandez stood for two murder trials and fans were shocked by accounts of his illegal drug use and violations. He was found guilty in 2015 of murdering acquaintance Odin Lloyd in an industrial park near his home.
The BU report indicated that the CTE in Hernandez was the most severe that they had ever seen and was more appropriate for a 67 year old as opposed to a 28 year old. He was found to have Stage III CTE, which can produce aggressiveness, cognitive issues, suicidal thoughts and dementia.
The finding would seem to answer the questions of many people as to why a football star would continue on such a seemingly uncontrolled path of self-destruction. However, that could be viewed as highly speculative or insufficient to excuse the murderous conduct of Hernandez.
The suit seeks damages for loss of parental consortium on behalf of Hernandez’s 4-year-old daughter, Avielle.
The NFL has said that it will vigorously fight the lawsuit.
One of the interesting elements is the fact that the prior conviction on Lloyd’s killing was vacated by Massachusetts Superior Court Judge Susan Garsh after Hernandez’s suicide because he died before exhausting all possible avenues of appeal as required under state law. Given that decision, the family could seek to keep information on the conviction (or even the murders) out of the trial.
The family however faces a very steep climb on these claims. The NFL is likely to argue preemption under its collective bargaining agreement where all such health matters are supposed to be arbitrated. There is also a claim that this action is subsumed under the NFL concussion settlement, though Hernandez likely not a party to it. Additionally, there is a possible defense under the Massachusetts workers’ compensation statute which preempts damage claims against employers outside of the law.
If they get to the merits, there will also be a question of assumption of the risk. Hernandez starting playing in 2010 when the risks of CTE were already known. He decided to play despite those risks. As argued in other concussion-related litigation against the NFL, a workers’ compensation statute might prevent recovery for injuries sustained by Hernandez while in the NFL. The Massachusetts Workers’ Compensation Statute details the state’s system for workers’ compensation. This system requires employers to carry insurance that promptly compensates employees who are injured on the job. In exchange, those employees relinquish their right to sue their employer for negligence related to their workplace injuries.