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Michael McCann on D&C: ‘Patriots really don’t have any legal relationship to the alleged victims’ of Aaron Hernandez

06.20.14 at 11:39 am ET
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Sports Illustrated legal expert Michael McCann joined Dennis & Callahan Friday morning to discuss a possible civil suit the Patriots could face as a result of the Aaron Hernandez murder case. To hear the interview, go to the Dennis & Callahan audio on demand page.

The Patriots have been named co-defendants in a civil wrongful death lawsuit against Hernandez. The lawyer representing families of two Dorchester men allegedly gunned down by the former tight end is seeking a court order to prevent the team from paying $3.25 million contract bonus he is owed.

“They’re usually successful against the defendant himself. They’re less successful against the employer, and that’s because the legal relationship of the employer of the defendant and the victim is often very tenuous,” McCann said. “And I think that’s true here, where the Patriots really don’t have any legal relationship to the alleged victims of Hernandez, where Hernandez clearly does have a relationship with those victims.”

The Patriots terminated Hernandez’s contract following his arrest for Odin Lloyd‘s murder last year, but the NFL Players Association has filed a grievance for Hernandez’s $3.25 million in signing bonus money he says he is owed.

McCann said the victim’s families want the money the Patriots may owe Hernandez depending on the result of the independent NFL grievance process.

“In terms of the legal theory it’s pretty weak that the Patriots have any obligation to these families, and that’s because Hernandez wasn’t acting within the scope of his employment with the Patriots when these murders happened,” McCann said. “Assuming for a minute that he’s guilty, what relationship did the Patriots have when he did it? It wasn’t happening as a New England Patriot; it wasn’t happening during work hours; it didn’t occur at Gillette Stadium, there was no team function.

“It seems like a pretty weak argument between the Patriots and these victims who they have no legal duty to protect. So I think it’s going to be hard to argue that the Patriots have any legal relationship.”

McCann said the families may argue that there were prior concerns about Hernandez before the Patriots drafted him.

“The problem there is multi-fold,” he said. “One is Hernandez had no criminal history that we know of prior to the Patriots. There were rumors that he had some connection to a gang, but those are rumors, and it’s often difficult to get juvenile records to the extent that there are records that implicate Hernandez.

“The Patriots could argue, even if there were questions about his character, that isn’t alone a reason not to employ him. And we don’t know if he violated team rules or anything like that when he played for the Patriots. He seemed to have been, from what we could tell, a productive player who played hurt. Maybe not the best person on earth, that seems clear, but I don’t think there were really warning signs that he was a murderer. That seems like a stretch.”

In terms of Hernandez’s murder case itself, McCann said Hernandez’s lawyers could try to use an insanity defense for Hernandez given his history of concussions in his playing career. However, McCann said doesn’t see it being a successful argument.

“There is a possibility that they could argue that he had diminished capacity, maybe because of concussions or some other head injury, that it was difficult for him to plan out or intend to murder, so therefore first-degree murder isn’t appropriate,” McCann said. “Maybe second-degree is appropriate. And maybe there are medical records showing that he was easily distracted or wasn’t able to focus or that injuries playing in the NFL, sub-concussive hits, caused him to act this way.

“To me, those are a stretch. I have a hard time seeing a neurologist or neurosurgeon testify to say, because he played in the NFL and he may have taken some hits, he therefore became a multiple-time murderer. That seems like a big leap in plausibility to me.”

Another NFL story McCann touched on was the Redskins having their trademark canceled by the U.S. Patent Office on Wednesday. The team has the right to appeal the ruling to a federal court, like it did when it had its trademark canceled in 1999 — the ruling was overturned in 2003. That means it could take years for the most recent decision to have an impact on the team.

“For a while, there will be no affect,” McCann said. “Beyond an appeal, let’s say there’s an appeal and it fails, the Redskins would then have to make a choice whether to keep the team name in the absence of federal trademark protection.

“But it isn’t quite as sweeping as is being reported, in my view, by some in the media because, first of all, even under federal law they would still have some protection. They could still claim they have an exclusive right to the team name. It just wouldn’t have the same legal presumptions. But then beyond that they also have state law protections and protections from court decisions that could help them protect their team name and go after counterfeit companies.”

Read More: Aaron Hernandez, Dennis & Callahan, Michael McCann,
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