Aaron Hernandez never ruled out resuming his playing career in the National Football League, and his return to the gridiron, despite being charged with three murders, would not have been “unprecedented or even unusual,” lawyers for his daughter said Tuesday.
The striking claim appeared in a court filing in federal court in Pennsylvania, where a lawsuit filed on behalf of Hernandez’s 5-year-old daughter is pending against the NFL. The suit alleges the league was negligent in failing to protect Hernandez from the affects of CTE, a medical condition linked to concussions and repeated head trauma. The NFL denies the allegations.
In addition, the league maintains the suit should be tossed because Hernandez was effectively retired from playing when the NFL reached a massive concussion settlement in 2014 with former players. Those retired players forfeited their rights to bring other concussion litigation against the NFL.
But in Tuesday’s filing, lawyers for Hernandez’s daughter said the former Patriot’s employment status at the time of his death was an open question for a jury to decide.
“Throughout the course of the turmoil, and indeed right up until his death, as is plainly detailed within the Massachusetts State Department of Corrections’ records, Hernandez verbalized an intent to return to NFL football,” his daughters’ attorneys wrote.
They referenced DOC reports quoting an inmate who told investigators that Hernandez, following his April 2017 acquittal in a double murder case, “had been talking about the NFL and going back to play, even if it wasn’t with the Pats.”
Hernandez hanged himself in his cell days after his acquittal, prompting a judge in Fall River to vacate his 2015 first-degree-murder conviction and life sentence for the slaying of Odin Lloyd. That conviction had been on track for appeal when Hernandez killed himself.
“Had he lived, [Hernandez’s] return to football could hardly have been well-characterized as unprecedented or even unusual; certainly, this would not have been implausible, as Defendants nakedly conclude,” his daughter’s lawyers wrote Tuesday.
But the NFL, in an August court filing, argued that he was unable to seek employment in the league when the 2014 concussion settlement was reached, thus making him a retired player subject to the terms of that class action agreement.
“[A]s of July 2014, he was not on any NFL roster or, given his incarceration, even able to seek active employment as a player with any Member Club — in fact, nowhere does Hernandez’s complaint contest this or allege that her father took any steps whatsoever to obtain employment with any NFL Club after his 2013 release from the Patriots; nor could it, since Aaron Hernandez could not plausibly seek NFL employment from a jail cell,” the league’s attorneys wrote.
Not so, according to attorneys for Hernandez’s daughter.
Their Tuesday filing said “NFL clubs have a celebrated history of employing violent criminals. Some of the game’s biggest stars — champions from hall-of-famer Ray Lewis, to Michael Vick, to Plaxico Burress, to Donte Stallworth — have been adjudged guilty of murder-related obstruction-of-justice, racketeering, weapons felonies, and manslaughter, respectively. Rather than end those star players’ careers, this startling list of offenses cost each player no more than two and in some cases zero seasons’-worth of total lost time.”
Regarding Lewis, the attorneys described the former Baltimore Ravens linebacker as “one of the game’s most heralded ambassadors, notwithstanding concerns that he stabbed two people to death and entered a guilty plea to obstruction.”
Lewis and two codefendants were initially indicted on murder charges stemming from a January 2000 bar fight in which two men were fatally stabbed. Lewis adamantly denied killing the victims and later pleaded guilty to obstruction of justice. His murder charge was dropped.
On Tuesday, lawyers for Hernandez’s daughter insisted that there was a chance, however remote, that he could have taken the field again at the time of the 2014 concussion settlement.
“[S]ince USA Today began its ‘NFL Player Arrests Database’ in 2000, it has recorded close to 900 arrests (or worse) among active NFL players,” the filing said. “As one reporter observed when musing specifically on Hernandez’s return to the football field following murder charges, ‘[b]e thankful O.J. is too old to play.’ If anything, a full return has to be viewed as the null hypothesis. It is hardly ‘implausible.’ ”
The lawyers, while conceding Hernandez was jailed when the league reached its 2014 settlement, wrote that he “had hardly abandoned his intent to keep playing NFL football. Certainly, he never ‘retired’ from the NFL, any more than did hundreds of other players, not on NFL rosters but still seeking gainful NFL employment as of the Preliminary [settlement] Approval Date, and eventually again on NFL rosters.”
According to the filing, no evidence “suggests that he had submitted retirement paperwork, nor received, nor even applied for his severance pay, a benefit taken by retiring players. Nor do Defendants suggest or point to evidence . . . that Hernandez or his heirs sought to register or did register for the  NFL Concussion Settlement.”
That never happened, the filing said, because Hernandez “vigorously and successfully disputed his charges, his contractual release, and had actively voiced an intent to return to the NFL. Nothing suggests he believed he was ‘retired.’ Nor that he had ceased ‘seeking’ active employment with an NFL club.”
Mark Shanahan and Meredith Goldstein of the Globe Staff contributed to this report. Travis Andersen can be reached at email@example.com. Follow him on Twitter @TAGlobe.