Aaron Hernandez's family may not be able to sue NFL over concussion-related issues

Aaron Hernandez was a former tight end for the New England Patriots. He was accused of murder, convicted, and committed suicide while in prison. It was just disclosed that he, a 27-year-old man, suffered from severe chronic traumatic encephalopathy, associated with concussions among football players. His family has filed a lawsuit against the National Football League.

But, they probably can't do that. (Well, I suppose they can file a lawsuit, but they probably can't win it.)

The NFL negotiated into a class action settlement a few years ago, and refined it, to settle all concussion-related and head injury-related lawsuits among its players. The payout would total about $1 billion, all told, with the bulk of it cash to former players.

It extends to all player who were retired as of July 7, 2014--Mr. Hernandez last played in 2012, so he'd fit this definition.

Players (and their families) had an opportunity to opt out of the settlement, but, as far as I can tell, Mr. Hernandez never did.

The biggest value to the NFL includes the preclusive effect of the settlement--that is, as a condition of handing out cash to former players and their families, the plaintiffs must agree not to sue the NFL for any related lawsuits. Section 18 of the settlement agreement includes broad provisions, typical of a class action settlement, precluding litigation over any concussion-related or head injury-related lawsuit.

In short, Mr. Hernandez's family probably can't successfully sue because their claims are all wrapped up in the concussion class action settlement. Because they didn't opt out, they're bound by it. So go class action litigation and settlements.

There are some challenges pending to the adequacy of the class action settlement, but those challenges have been losers so far, and I find it difficult to believe they'll succeed. There is a chance, too, that Mr. Hernandez's family might find a creative way to attack the judgment. But I think those are probably unlikely to succeed. Class action settlements have significant preclusive consequences, and the Hernandez lawsuit is simply a high-profile demonstration of what those consequences look like.

UPDATE: I've read reports that some believe Mr. Hernandez is not covered because he was not "retired." That is, he was young and, if he had been found not guilty, could have returned to seek a contract. The definition of "retired" almost assuredly covers him in at least two respects (and I've excerpted the relevant portion below). First, the New England Patriots cut him in 2013, and he was no longer seeking active employment. Second, he may have been deemed to have "informally" retired once he was cut from the team and facing criminal charges. I find it hard to believe that does not fit the definition. Indeed, some additional reporting suggests that just such a finding of CTE would make it easier for his family to collect from the class action settlement.