In her latest move in her battle with the NFL, Shayana Jenkins Hernandez (“Jenkins”), the former fiancée of late New England Patriots tight end Aaron Hernandez, refiled a lawsuit in state court against the NFL and Riddell, the NFL’s official helmet provider from 1989-2013. The claim alleges that the NFL was negligent in failing to protect the former Patriots tight end from the dangers and effects of concussions.

When Aaron Hernandez was convicted of murder in 2015, many wondered whether the physicality of football contributed to his violent tendencies off the field. When he committed suicide in April 2017, researchers at Boston University’s CTE center performed an autopsy and discovered that Hernandez had stage 3 chronic traumatic encephalopathy (CTE), a neurodegenerative disease that can only be detected posthumously. Hernandez’s brain showed significant loss of brain tissue, dilated ventricles, and thin membranes. His hippocampus and fornix, which contribute to memory, had shrunk and atrophied, his temporal lobe was abnormal, and his amygdala, which regulates emotions, was damaged. BU’s CTE center had never seen stage 3 CTE in the brain of anybody younger than 46. Hernandez was 27. Thus, the question the public asked shifted: “Did football play a role in his suicide?

In response, Jenkins sued the NFL and the Patriots in federal court, arguing that they did not protect Hernandez from the dangers of concussions and thus, were liable due to negligence. But Jenkins had an uphill battle to climb – the NFL had successfully fended off similar allegations of negligence multiple times in the past.

In prior suits, the NFL appealed to its collective bargaining agreement, which governs disputes between the NFL and its players. Arbitration, rather than a lawsuit, should settle any and all disputes that arise from the CBA, they claimed. However, even when complaints reached the courts, players have historically had difficulties proving the NFL’s negligence. In order to do so, players must prove that any injuries they sustained were a direct result of hits they received in the NFL, a high bar for most football players, who have been playing the contact sport since childhood.

There was one relatively easy way out for the Hernandez family – attempt to claim up to $5 million by relying on a class-action settlement approved in 2015. More than $500 million worth of damages have already been claimed by numerous football players’ families. The problem was that in doing so, Jenkins would have been giving up her right to bring concussion litigation against the league, a suit potentially worth over $35 million.

In filing her federal suit, Jenkins gave up her right to the class-action settlement. On Monday, Jenkins decided to withdraw her federal suit and refile in state court, where she could make more claims. In her new suit, Jenkins drops the Patriots as a defendant and draws a clear distinction between her suit and the class-action. Here, she sues on behalf of her daughter and claims loss of parental consortium. Massachusetts held in Ferriter vs. Daniel O’Connell & Sons that a minor child has a “right to recover for loss of a parent’s … companionship through a defendant’s negligence if the child … [depends] on the parent both economically and in filial needs for closeness, guidance, and nurture.”

Jenkins alleges that the NFL was negligent in its concussion protocol, describing it as a “long-running conspiracy … [to] justify ignoring these warnings” of brain injury. She similarly accuses Riddell of negligence, in their funding of “fraudulent concussion research” that used “sham science” to promote “knowingly unsafe protective equipment.”

Jenkins’ argument hinges on her claim that Hernandez’s employment status was an open question. Though he was not on any NFL roster due to his incarceration, the tight end had not ruled out returning to the NFL, a league with “a celebrated history of employing violent criminals.” The complaint refers to “[s]ome of the game’s biggest stars … from hall-of-famer Ray Lewis, to Michael Vick, to Plaxico Burress, to Donte Stallworth,” all of whom “have been adjudged guilty of murder-related obstruction-of-justice, racketeering, weapons felonies, and manslaughter, respectively.” Jenkins emphasizes that Hernandez was acquitted of killing Daniel de Abreu and Safiro Furtado in 2012 and was on track for appeal for his murder conviction of Odin Lloyd in 2013. Because of his death, his murder conviction was essentially overturned. He is no longer guilty according to Massachusetts state law.

On behalf of her daughter, Jenkins asks for the remainder of Hernandez’s $40 million contract. It is a risk, for the NFL has showed its lack of fear of bad publicity. But to Jenkins and her 5-year-old daughter, it is a risk that is worth taking.

Jess Hui is a Sports and Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2021).

Image: Jeffrey BeallAaron HernandezCC BY 3.0