A federal judge from the Eastern District of Pennsylvania has ruled that the daughter of the former NFL player Aaron Hernandez, who committed suicide in 2017, cannot sue the NFL for damages associated with her father’s diagnosis, post-mortem, of chronic traumatic encephalopathy.
Specifically, Judge Anita Brody found that because the plaintiff (A.H.) missed a 2014 deadline to opt out of the league’s concussion settlement, she can’t now separately pursue her $20 million claim. That’s because the settlement bars all outside claims by spouses and children, who did not opt out of the settlement, for injuries arising from players’ concussions.
The plaintiff was also blocked because Hernandez’s death occurred too late for her to seek the up to $4 million in compensation that was made available for suicides related to CTE diagnosis, pursuant to the class action settlement.
The latter turned on whether Hernandez was a retired NFL football player within the meaning of the settlement. The settlement defines “Retired NFL Football Players” as “all living NFL Football players who,” prior to the settlement:
“ retired, formally or informally, from playing professional football with the NFL or any Member Club . . . or
“ were formerly on any roster, including preseason, regular season, or postseason, of any such Member Club or league and who no longer are under contract to a Member Club and are not seeking active employment as players with any Member Club, whether signed to a roster or signed to any practice squad, developmental squad, or taxi squad of a Member Club.”
The settlement agreement’s definition of “Retired NFL Football Players” thus encompasses not only players who were formally or informally retired, but also “those who—at the time of preliminary approval and preliminary class certification—had (1) formerly been on an NFL roster, (2) were no longer under contract to an NFL team, and (3) were not seeking active employment as players with any NFL team.”
“The parties do not contest that, as of July 7, 2014—the date of the preliminary approval and class certification order—Hernandez had formerly been on an NFL roster and was no longer under contract to an NFL team,” wrote the judge. “Hernandez played football for the New England Patriots for three seasons starting in 2010. The Patriots released him from his contract in 2013. He did not play professional football after his contract was terminated.
“The crux of the issue is whether Hernandez was ‘seeking active employment’ as an NFL football player as of July 7, 2014. He was not. On this date, Hernandez had been imprisoned—without bail—for nearly a year, was awaiting trial for murder and related gun charges, and was facing a possible sentence of life without parole. The trial did not begin until January 2015. These facts are squarely inconsistent with ‘seeking active employment’ with an NFL team.
Further, “as an initial matter, A.H. has not pled that Hernandez was ‘seeking active employment’ as of July 7, 2014. Nor has A.H. pled that Hernandez was taking any active steps amounting to ‘seeking’ employment as an NFL player, such as signing with an agent, making it known to teams that he was available to be signed, engaging in active negotiations with teams, and/or trying out for teams. It is plaintiff’s burden to allege sufficient facts in the complaint to ‘raise a right to relief above the speculative level.’ Bell Atl. Corp., 550 U.S. at 555. A.H. has not met this burden. All of the relevant facts in the Complaint and in public records show that Hernandez could not have been seeking active employment as an NFL football player on July 7, 2014, because he was incarcerated and awaiting trial.
“A.H. does allege, in her response to the NFL Parties’ Motion to Dismiss, that Hernandez ‘had hardly abandoned his intent to keep playing NFL football’ and that he ‘actively voiced an intent to return to the NFL.’ But ‘voicing an intent’ to be employed at some future date does not equate ‘seeking active employment.’ Even if this were alleged in the Complaint—which it was not—it is immaterial to whether Hernandez is a ‘Retired Football Player.’ The Settlement does not require that a Retired Football Player permanently ceased ‘seeking active employment.’ It requires that, as of July 7, 2014, a Retired Football Player was not at that time seeking active employment. Hernandez’s status as a ‘Retired Football Player’ is determined only by whether or not he was ‘seeking active employment’ as of July 7, 2014. Because he was not—and could not have been—he is a ‘Retired Football Player’ under the terms of the Settlement.
“It makes sense that A.H. has not alleged that Hernandez was ‘seeking active employment’ as of July 7, 2014, because it would have been impossible for him to do so. While he was incarcerated, Hernandez could not have been ‘going in search of’ or ‘trying to bring about’ active employment as a professional football player. He was being held without bail and awaiting trial on a charge carrying a sentence of life without parole. Indeed, as of July 7, 2014, Hernandez did not even know when his trial would take place. (His trial was not scheduled until two weeks after the Preliminary Approval Date.) Without knowing when, if ever, he would be able to be employed as an NFL player (a job which undeniably requires physical presence, and which cannot be performed by an incarcerated person), Hernandez could not have been seeking active employment.
“Because A.H. did not plead that Hernandez was taking active steps towards employment as an NFL football player as of July 7, 2014, and because it would have been impossible for Hernandez to do so while indefinitely incarcerated, Hernandez is a Retired Football Player within the meaning of the Settlement. This makes A.H., who brings her loss of consortium claim against the NFL Parties by virtue of her relationship with Hernandez, a Derivative Claimant.”
In re Nat’l Football League Concussion Litig.; E.D. Pa.; Nos. 12-md-02323, 18-cv-00464; 2/14/19