From my desk: Major Opioid Use in the Major Leagues

Former Angels Communications Director Eric Kay has been indicted for death of Angels pitcher Tyler Skaggs. Charges include conspiracy to distribute and possession with intent to distribute. Kay faces up to 20 years in Federal Prison if convicted. Involuntary manslaughter was not on the table. 

Skaggs was found dead in his hotel room

on July 1, 2019 while in Texas for a game. His cause of death was determined to be a mixture of alcohol, fentanyl and oxycodone intoxication with aspiration of gastric contents. Essentially Skaggs choked on his vomit. 

It was later ascertained that “but for the fentanyl, Mr. Skaggs would not have died," the U.S. Attorney's Office in Northern Texas announced. I have not seen the toxicology report regarding the levels of each substance detected and it may be difficult for the government to proceed on this theory/ conclusion given that any one of the substances Skaggs ingested could have resulted in aspiration and death. 

Based on various news outlets, Kay, who is NOT a medical doctor, told investigators he gave Skaggs three oxycodone pills a day or two before the Angels left California for Texas for a series against the Rangers. Kay also said he did not believe the pills he gave Skaggs were the same the athlete took the day he died because he usually consumed them immediately. This leaves open the possibility that Skaggs obtained pills via another source, possibly absolving Kay as a causal connection must be established between the criminal acts and the death. However, incriminating text messages exchanged between the two regarding pills, and hotel swipe key records from June 30, the day before Skaggs was found dead, place the two of them in Skaggs room late on June 30. Kay ultimately admitted he was with Skaggs on June 30 and observed him snort a variety of substances including oxy and cocaine. However it does not appear cocaine was detected in Skaggs’ system on autopsy. 

It is doubtful that Kay will receive any substantial sentence given past similar scenarios. Remember Michael Jackson’s doctor Conrad Murray? He only served two years out of a four year sentence after being convicted for involuntary manslaughter in the death of Jackson after administering lethal doses of Propofol. 

Given the apparent widespread abuse of opioids, Major League Baseball Players Association announced in December 2019 that it would start testing for drugs including opioids and cocaine, with marijuana being removed from the list of banned substances. 

LIABILITY WAIVERS AND COVID-19

        With colleges opening up campus for athletes, pro teams starting group practices and businesses opening up you are going to see an inevitable rise in COVID-19 with unavoidable close contact. You will start to see many sports programs requiring athletes to sign a waiver of liability for all COVID-19 related “injuries” and illnesses. This begs the question: are COVID-19 liability waivers valid and enforceable in NYS? Waivers vary from state to state. Three states—Louisiana, Montana and Virginia—disallow liability waivers entirely. Other states’ laws vary between lenient and strict requirements for enforceability, and most jurisdictions have adopted specific tests for considering whether a waiver is enforceable. In NY a liability waiver is enforceable if: (i) it does not violate public interest, (ii) the intention of the parties is expressed in unmistakable language, and (iii) the provisions are clear and coherent.

     I drafted a liability waiver for a personal trainer in NY a few years ago. New York State does not enforce waivers in cases where there has been gross negligence or reckless and inherently dangerous acts and conditions; it only protects against common/general negligence. The waiver also has to be clear and unambiguous. An example of gross negligence pertaining to COVID-19 would be if a sports team or business fails to follow state and local guidelines regarding COVID precautions. For instance if a sports team fails to take any measures to sanitize equipment or common spaces such as locker rooms or a business fails to space individual eating areas 6 feet apart and fails to require their employees to wear masks. These are examples of gross negligence. We may be seeing litigation arise in cases where an athlete or patron was required to sign a waiver essentially waiving any future rights to litigation claims. However, if they contracted COVID-19 due to the gross negligence of the team or business the waiver will likely be unenforceable in Court. While there is the assumption of risk with all of this, individuals signing waivers are not assuming risk for gross negligence. Just common negligence. On the other hand it will be very difficult in any case to prove how, when and where someone contracted COVID-19.  Bottom line is if you are going to require athletes or patrons or fans to sign a waiver, make sure it is clear, unambiguous and understandable to a lay person so that they know exactly what they are waiving their rights to. Consult your lawyer. Keep in mind, before requiring athletes, fans or patrons to sign a waiver, make sure you did your due diligence by following the cleaning and precaution guidelines and requirements for your local and state government.

GYMDEMIC: Mom & Pop Gym Sues New Jersey Governor After COVID-19 Pandemic Shutdown

Small business Atilis Gym Bellmawr, LLC in New Jersey just filed a Federal lawsuit in the United States District Court For The District Of New Jersey against Governor Murphy, Attorney General S. Grewal, New Jersey State Police Superintendent Patrick J. Callahan and New Jersey Department of Health Commissioner Judith M. Persichilli.

The gym re-opened its doors two weeks ago in violation of Governor Murphy's Executive Order which shut down "Non-Essential" businesses on March 21, 2020 in response to the COVID-19 pandemic. Despite being issued several summonses the gym owners and their attorneys stood by their gym and members and refused to shut their doors again. Atilis Gym members were fined and received citations. One member was arrested after allegedly taunting police officers and refusing to provide his name.

The gym owners justified their decision to reopen early citing financial hardship and discontent that big stores and liquor were able to remain open as essential businesses during the pandemic while small businesses continued to suffer. The gym owners explained to various media outlets that they reorganized the gym equipment to maintain social distancing, required a thermal body temperature before entering, required masks and gloves for all employees and members, and limited the number of members working out in the gym at the same time.

It is not clear whether Atilis Gym qualified for or applied for a small business loan under The CARES Act. 

Last Friday, Superior Court Judge Robert Lougy granted a request from the New Jersey Department of Health to place temporary restraints on Atilis, directing the gym to remain closed to the public until the state allows businesses designated as non-essential to reopen. Meaning, the DOH shut them down and put padlocks on the doors.  

The order issued by the DOH states “Atilis Gym has continued to operate in non-compliance with Executive Order No. 107, thus posing a threat to the public health by failing to adhere to the measures taken to mitigate the spread of COVID-19.”

While violating an executive order is not per se breaking the law, the actions by Atilis Gym are considered violations of the public health law.

New Jersey is the second hardest hit state from COVID-19 deaths behind New York.

The Lawsuit

I was able to take a look at the Complaint. Jurisdiction in Federal Court appears appropriate as the gym owners  and their attorneys allege in their Complaint violations of their Constitutional rights to due process and equal protection rights under the Fifth and Fourteenth Amendments.

The gym alleges that their business was declared "Non-Essential" without any sort of process. The gym argues that the Orders issues by Governor Murphy and state officials deprives the gym its rights and liberties in lawfully operating its business by ordering the closure of "Non-Essential" businesses. The gym further argues that they were not afforded with a constitutionally adequate hearing to present its case for its business to not be shut down. 

The gym further claims that its health protocols are sufficiently similar to those businesses that were allowed to remain open. The gym claims that its business is absolutely essential to the health and well being of its members and to the financial viability and health of its owners and employees. 

What The Gym Wants By Bringing This Lawsuit

The gym owners want permanent injunctive relief invalidating and restraining the enforcement of the Orders which shut them down. The want the lockdown order lifted. They are also seeking compensatory damages of an unknown amount and attorneys fees for having to bring this lawsuit. 

What Will Happen Now

Honestly, by the time the lawsuit is hashed out New Jersey will likely have opened up "Non-Essential" businesses including fitness facilities. Until then, the Court scheduled a hearing for June 8, 2020. 

Will The Gym Win

It is unlikely that the gym will win this one. While they make some great arguments challenging the constitutionality of the lockdown/shutdown orders and the criteria used to define "Essential" versus "Non-Essential" businesses, ALL recreational and entertainment businesses were closed for the general wellbeing of the public to slow the spread of COVID-19 during this worldwide Pandemic. 

But wait a minute. Look at Michigan barber Karl Manke, the 77-year-old  barber who stood up against Michigan’s Governor Whitmer. A judge ruled last week that the health department failed to show that Manke's business cutting hair was a specific threat to public health.

Manke's attorney pressed the government to prove that the barbershop was contributing to the spread of coronavirus, as the burden of proof rests with the state to show evidence of the public health threat. The state failed to meet their burden. 

Another factor in favor of Manke was that the sheriff decided not to arrest him therefore implying that the barber was not a threat to public health. 

On May 27, 2020 the death toll from COVID-19 related deaths surpassed 100,000 in the United States. Businesses have closed for good. Families have lost their homes. People have lost their jobs and livelihood. People have lost friends and loved ones. 

In the end no one wins.

THE COST OF THE COVID CRISIS ON THE NCAA AND CONTACT SPORTS WITHOUT CONTACT

The NCAA already lost millions with March Madness cancelled. Now colleges have to consider the cost of safely re-opening their athletic facilities and housing accommodations amid the COVID crisis. This will come at a hefty price tag. 

On May 22, 2020 the NCAA announced the voluntarily return of activities in all sports beginning on June 1, 2020. However, each school will need to work with their respective state and school officials to determine when the best time is for coaches, athletes and administrators to physically return to campus. New York for example has been hardest hit by the coronavirus so the timeframe for athletes to return to campuses in New York will most certainty lag behind other states. 

Colleges cannot host football camps and clinics during the summer of 2020 and coaches are prohibited from working at football camps and clinics held at other four-year NCAA schools. This coincides with the recruiting dead period in place through June 30, 2020 which prohibits football camps and clinics. If the recruiting dead period is extended past June 30, camps and clinics will continue to be prohibited.

Contact sports without contact? This will be the new norm when athletes return to campus to train. Chatter among NCAA football powerhouses include safety measures with coaches, athletes and staff in masks and gloves. Temperature tests at the front door. Hand sanitizing stations. Small group training. Social distancing weight room squat racks 20 apart. Moving weight training outside. No access to locker room showers. No passing a football back and forth. No sharing towels or water bottles. No shared water fountains or hydration stations. No hugging, no high-fiving and no weight-training exercises that require assistance from a spotter. 

“It will be the new norm," says Tory Lindley, president of the National Athletic Trainers' Association and an associate athletic director at Northwestern University.  

Keep in mind a typical NCAA Division 1 school has over 100 active players on their football roster. Coaches, trainers and staff will have the additional responsibility of ensuring social distancing and safety measures are followed. Athletes will have to train themselves for this new norm as well. 

Welcome to the world as we now know it. 

How Social Media Has Allowed Athletes To Tell Their Own Story In Their Own Words

Social media has allowed athletes an avenue to speak directly to their fans and audience without the media muddling their story. Social media has made it more difficult for traditional media outlets to be the first to share breaking news about athletes. 

Remember tuning into SportsCenter for breaking news and highlights? Now social media forums such as Twitter and Instagram allow an athlete to share his or her story first by tweeting or “graming” thereby bypassing the traditional route of news sharing. This is sometimes to the chagrin of a team or athlete’s public relations representative who may have to perform some damage control.  

While balancing the right of freedom of speech under the First Amendment, some athletes have to be careful with the content they post. For example, take Ray Rice. The former running back for the Ravens once tweeted “Just got pulled over for my tints Smh but gave the officer a autograph for his son and he let me go.” While his actions were not against the law per se, he publicly admitted to having essentially bribed a police officer. As a result the police officer likely received some repercussions or a nice scolding from his superiors. Some of the  public was also disgusted over an athlete feeling entitled and using his stardom to get out of a ticket. Another example, Davone Bess, former NFL player, once posted a photo on Twitter of marijuana in his house. Poor judgment for sure. As an aside, under the new NFL CBA which took effect in January 2020, players will no longer be suspended if they fail a drug test for smoking marijuana. But this is  not exactly a green light to flaunt it all. 

More in line with what is going on currently in the world, NFL Bronco players Davontae Harris and Shelby  Harris engaged in a little Twitter snafu recently about differing opinions on mask requirements amid the coronavirus. D. Harris twittered, 

“If I see another parent walking around with a mask on and their toddler doesn’t I’m slapping them”

In response S. Harris twittered, 

“Strong statement from someone who doesn’t have kids” and the back and forth continued. While entertaining for fans, athletes might tick off their organization, coaches and agents and also alienate some fans for posting their political and social views. 

The traditional route for news sharing usually involved a sports organization sharing selective news about a particular athlete or event with a specific news outlet such as ESPN. The sports organization could select what pieces of information to share and  what information to withhold. The news outlet in turn would craft and tailor the story to present it to their own fan base and audience. 

Now news outlets such as ESPN, Bleacher Report, Fox Sports and SI rely heavily on athletes’ trending tweets. A good example is when an athlete announces their retirement on Twitter.  Athletes can also send very strong messages on Twitter and some get disciplined for same. LeBron James sent out a strong message the time he unfollowed his own team the Cavs on Twitter and Instagram leaving fans and media outlets alike up in arms. 

Hearing news first from the athlete himself or herself creates a bond between athlete and fan and allows fans to engage one-on-one directly with the athlete by commenting on a particular post, sharing a particular post and  feeling like part of the athlete’s life. This especially rings true when the athlete engages their fan and audience by responding directly to a fan comment. 

Twitter and other social media forums can serve as an avenue for an athlete to share unfiltered news about their life and humanizes an athlete. Fans may feel they can relate to a particular athlete. This is opposed to the selective style utilized by news outlets that pick and choose which parts of a story to tell and on occasion over-sensationalizing a story and sometime downplaying a story.  

Bottom line is social media has provided athletes a venue to share their story directly to their fans without a middle-man. However First Amendment freedoms must be balanced with the message a particular athlete is trying to send to their fan base. 

The USWNT Got Exactly What They Bargained For.

On May 1, 2020, Federal Judge R.Gary Klausner dismissed portions of the lawsuit commenced by the U.S. Women’s National Soccer Team (USWNT) against the U.S. Soccer Federation. Judge Klausner dismissed claims brought under the Equal Pay Act and rejected the USWNT’s argument that they receive lower pay than the U.S. Men’s National Soccer Team (USMNT).

Under the current women’s team’s Collective Bargaining Agreement (CBA) which went into effect in 2017, the players association opted for more of a fixed income structure with a
guaranteed base annual salary and benefits that the men’s team does not have.
Such benefits include medical and dental insurance, paid child-care assistance,
paid pregnancy and parental leave, severance benefits, salary continuation during
periods of injury, access to a retirement plan, and multiple bonuses. These
bonuses that the women benefit from certainly contain substantial economic
value.

In comparison, the structure of the men’s teams’s CBA provides for a more pay-to-play and incentive-based compensation structure.

U.S. Soccer Federation said in a
statement:

“Women’s national team players are paid differently because they specifically asked for and negotiated a completely different contract than the men’s national team, despite being
offered, and rejecting, a similar pay-to-play agreement during the past negotiations.”

However, the USWNT will still get their day in court on the players’ claims concerning alleged discrimination in air travel, hotel accommodations and medical and training support (“working conditions”).

Trial is tentatively scheduled to start in June 2020. Unfortunately, in light of COVID-19 there may be further court delays. It is entirely possible that the issues raised in the lawsuit
will be resolved outside of court with the players’ association renegotiating
the new CBA which is to take effect in 2021. Having four World Cup wins under
the USWNT’s belt, I am very curious to see the terms of the new CBA.

Bottom line: You get what you
bargained for.

Fantasy Football Becomes Virtual Reality with 2020 NFL Draft Amid COVID-19 Pandemic

No one and no entity is immune to COVID-19. As COVID-19 reared it’s ugly head the World was pretty much put on lockdown. High school, collegiate and professional athletes took a hit as schools and organizations were shutdown.

COVID-19 pandemic also single handedly closed down NFL offices and club facilities along with other professional sports organizations. NFL Pro days were cancelled. Athletes have limited workout resources as gyms and training facilities are closed across the nation. The NFL Combine went on as scheduled and a few colleges hosted pro day before this pandemic took full force. Unfortunately, once the pandemic hit and colleges cancelled pro day and social distancing became the new norm, many 2020 NFL non-combine draft prospects missed out on their opportunity to attend pro day or training/workouts days with NFL clubs to showcase their skills. This was a major set back for all involved as pro day provides one last chance to show the scouts what you’ve got. Many prospects were left to their own creative devices and submitted their virtual workouts to NFL clubs in hopes of attracting their attention. I enjoyed the “mock Combine/pro day” Boston College’s John Phillips put together where he performed the mandatory drills and requirements he would have performed on pro day. 

We saw something unprecedented this year with the 2020 NFL virtual draft with no in-person attendance. Due to social distancing and lockdown requirements, the NFL virtual draft allowed us to get a glimpse into the personal lives of NFL coaches, owners, and GMs as each took to their homes with their unique setups during the draft.  

The virtual draft really engaged the fans and added a nice personal touch to the whole event. Fan engagement was at an all time high as NFL clubs allowed fans a virtual tour of their “war room” setups. I think this aspect of the virtual event was a silver lining and really attracted fans and those who might not typically watch the draft. 

Fans were humored by Bill Belichick’s dog pictured sitting in front of the computers during pre-draft. Fans saw Panthers head coach Matt Rhule’s kids dressed as cheerleaders in the background. Chargers GM Tom Telesco’s stuffed moose kept things interesting. Eagles GM Howie Roseman took fans on a virtual home tour of his  setup. San Francisco coach Kyle Shanahan took us for a tour of his home office setup ahead of the draft. Very cool. Titans GM Jon Robinson's “war room” was pretty spectacular. Chicago Bears coach Matt Nagy had some interesting wall paper. Minnesota Vikings coach Mike Zimmer took cover in his Minnesota cabin with mounted trophy heads on the wall. Interesting. What about Cowboys owner Jerry Jones’ draft room on his $250 million super yacht? Super awesome. Even Roger Goodell gave fans a quick tour of his Bronxville, NY basement where he announced the NFL Draft picks. 

The virtual event allowed fans to watch the draft live from basically any electronics forum including phone, tablet, iPad, and computer. Clubs such as the Seahawks and Lions even invited fans to attend virtual draft after parties! 

The virtual draft drew in record breaking viewership. An estimated 15.6 Million locked-down homebound viewers tuned in which is a new record for this event according to ESPN. 

What does this virtual World mean for the upcoming offseason/preseason training? As NFL preseason rapidly approaches there are a number of hurdles to overcome. There has been chatter about COVID-19 testing for all players to ensure a safe environment for all involved. Most interesting, as reported by NFL Network’s Pelissero, the NFL and NFLPA reached an agreement for a voluntary offseason virtual program. No on-field work is permitted until all 32 club facilities reopen. 

Sources report that the virtual period will consist of three consecutive weeks of classroom instruction, workouts and non-football educational programs using videoconferencing technology. Various news outlets report that the program is voluntary for players but if they participate they can earn their off-season workout bonuses as stipulated in their individual contracts. Teams are allowed to provide players with up to $1,500 worth of workout equipment for virtual workouts. 

In a World dictated by this pandemic right now, virtual technology is a golden tool to keep us all connected while ensuring our safety. I was overall impressed with the success of the 2020 virtual NFL Draft and I look forward to the rolling out of the virtual workouts on a professional level. Congratulations to all those whose dreams came true the last three days!

DON’T CRY FOR ME TOKYO

From Wall Street to the streets of Tokyo, this insidious virus COVID-19 touches on every aspect of our lives and has affected every single one of us in this World in one way or another. From healthcare to small and large businesses, to colleges, schools, gyms, salons, bars, and restaurants, to sporting events, this virus does not discriminate. It has taken away our livelihood and left us under lock and key and isolation. 

With the 2020 Tokyo Summer Olympics just around the corner only four months away, there have been closed door meetings among the various nations’ Olympic Committees regarding the decision of whether to postpone the Games to 2021.  

The International Olympic Committee announced yesterday that it will make a decision whether to postpone the 2020 Tokyo Games at some point in the next four weeks. So far the US Olympic Committee has indicated that it has no plans to ask that the Games be postponed. It is a wait and see at this point. We do not know whether the virus will subside within the next few weeks or months or whether it will continue to spread. 

The Canadian Olympic Committee just issued a statement advising it would not send athletes to the Tokyo Games this summer and called for them to be postponed for one year. Canada is the first country so far to make this threat to boycott the Games in the face of the coronavirus pandemic. 

Imagine the devastation for all the World’s athletes who have trained so hard and have dedicated their lives working towards this goal of making an Olympic team. The Olympics itself is certainly not conducive to practicing social distancing. Athletes train together, compete together, share equipment and live together in the Olympic Village. Athletes converge from every Nation. 

In addition to the real threat of contracting this virus and the current practice of social distancing, athletes for the most part are on lockdown and their training has been curtailed. For example the USA Track & Field Outdoor Championships were cancelled. This is a key event leading up to Olympic Trials. 

With the Olympics starting in July, athletes have not been able to train properly for the upcoming Olympic trials. Some are quarantined and others do not have full access to their coaches, trainers, therapists or training facilities. Athletes train in cycles in order to peak at certain times and this disruption in their livelihood is heartbreaking. Take a look at gymnastics for example. Women gymnasts have a relatively short career when compared to some other sports. A female gymnast may be 16 years old for the 2020 Olympics but will be 20 years old for the next Olympics should the Games be cancelled all together until 2024. That athlete may not be able to sustain the body composition required for this particular sport and may not be able to continue the rigorous training schedule for another four years.

Bottom line is if the Games have to absolutely be postponed, then one year to me is a reasonable alternative.  

March Madness is not just a Tournament

CANCELLED, CANCELLED, CANCELLED. A multi-billion dollar industry cancelled just like that. March Madness is the perfect name for what’s been going on this month. This is the month that sports died. This is the month that athletes around the nation and world died inside. This is a month that will go down in history. Imagine these athletes having trained so hard for the upcoming season, championships and maybe their last senior season. Imagine the heartbreak and sense of loss. My heart goes out to all student-athletes especially those high school seniors who are missing out on championship meets and games and will never get that back. 

One of the greatest titles I had in life was student-athlete. I would not trade that title for anything. I earned it through a lot of grit, pain, heartbreak, and love and hate relationship with my events. My coaches throughout the years from high school to college to post collegiate will always have a special place in my heart. I would be heartbroken if my high school senior season had been cut short. It was the year I finally qualified for the New York State High School Championship meet in the 100 meter hurdles. As a collegiate student-athlete I thrived during our Division 1 championship meets. Athletes start to lost their identity once the game stops and this is a trend we will be seeing. It’s so important for them to receive the support and advise and transitional skills to get out ahead of this crisis. 

The NCAA ended the remainder of its 2019-20 winter and spring seasons amid the Coronavirus pandemic with no sports being played until the fall. No championships in any remaining sport, no March Madness, no College World Series. What happens come summer training camps and Fall Football season? Collegiate  Spring football has already been suspended. So far the US Olympic trials have not been cancelled or postponed. The Tokyo Olympics plans to proceed. I think by mid-April we will have a better sense of whether this virus is starting to settle down. 

Imagine the revenue that will be lost as a result of the shut down? The NCAA on average pulls in $1 Billion a year in revenue from ticket sales, corporate sponsorships, and media ads mostly deriving from championship events such as March Madness. Never mind what the professional leagues pull in. It well surpasses $1Billion. 

It’s not just the athletes that are affected. It literally takes a team to run a team. I feel for the athletic departments, sports media, coaches, trainers, parents and fans. To many coaches these athletes are their kids as much as their own. They are a family. 

The loss extends to the professional major leagues. The MLB is delaying the start of its season two weeks. The NBA and NHL have suspended their seasons indefinitely. MLS is putting its season on a 30-day hold. Around the world athletes are affected. Italian national team player and Juventus star Rugani tested positive and FIFA has postponed all international games.  

The good news is that the NCAA council leadership announced on Friday that ALL Division 1 student-athletes who participate in spring sports will not lose a season of eligibility due to the coronavirus pandemic. But what about Division 2 and 3 athletes? I am all for granting all divisions of students-athletes a spring eligibility season. However this is an expensive endeavor and logistically complicated. If spring-semester athletes are allowed another year of eligibility, colleges have to pay for those scholarships. And if an athlete isn’t on a full scholarship, which many are not, who foots the rest of the bill? The parents? The NCAA, the college? 

Also an extra year of eligibility would mean expanded team rosters. The NCAA would have to temporarily change its rules to accommodate these exceptions.  NCAA rules are very strict as to how many paid coaches are hired per team per roster. Will more paid coaches be authorized to accommodate the expanded rosters? There are still many questions and issues that will be addressed and resolved in the coming weeks and months.  

There has been some chatter about senior basketball players being given an extra year of eligibility, although that seems unlikely since only the postseason was interrupted. Under the current NCAA rules, once a student-athlete appears in 30 percent of his or her season schedule or past the halfway point of that season, it counts as a year of eligibility. Not the way to end a senior’s collegiate career. 

When will the madness end?

Aaron Hernandez Unhinged

Let’s talk about Aaron Hernandez; one of the hottest topics this month. There seems to be a buzz in the air since Netflix premiered its intriguing and addicting docuseries entitled, Killer Inside: The Mind of Aaron Hernandez. I was hooked. So hooked in fact that after I finished watching this three-part series during one long night, I was left salivating for more information on the case and life of Aaron Hernandez. Just who was Aaron Hernandez? What was it about him that drew me in hook, line & sinker? Was it because he was an extremely good looking and talented athlete, formidable on and off the field? Was it because he appeared to be a sociopath on the one hand but a charming role model on the other? 

Just who was Aaron Hernandez? A simple boy from Bristol? A star NFL tight end worth $40M? A handsome, charismatic guy? A wanna be gangster? A sociopath? Homosexual? Bisexual? Womanizer? A father? All of the above?

What was fascinating to me about this case was the fact there was no confession, no credible motive and no one ever came forward as an eyewitness to the murder of Odin Lloyd. In essence Hernandez was convicted of First-Degree Murder and sentenced to life in prison without parole based purely on circumstantial evidence with the help of CCTV. 

There is just something about this case. I must confess as tragic as this all was for all involved, if Hernandez was still alive and in prison I just might want to be his pen pal. (Don’t judge, I know most of you are thinking the same thing!)

This is simply my unedited, maybe biased opinion on the case keeping in mind I am no connoisseur of criminal law or criminal minds. 

Did you ever imagine that tattoos were capable of confession? (Spoiler alert). This is precisely what was argued by the prosecution in this case. They argued that Aaron Hernandez’s tattoos represented self-incriminating confessions that told several stories; a story of a double homicide, a story of the murder of Odin Lloyd, and a plea for God to forgive. Shockingly, the prosecution was successful in this argument and called “experts” in tattoo interpretation to testify at trial. Be careful before you get inked up. It just might come back to land you in prison for life. While the Netflix docuseries did not cover every aspect of the case you get the gist of what happened summed up in a nutshell.

The Aaron Hernandez case was a treasure trove for a great criminal defense attorney in my opinion. The outcome of this case was based on a culmination of circumstantial evidence, but any great criminal defense attorney could have taken each piece of circumstantial evidence and challenged it and discredited it to create reasonable doubt among the jurors. I think of it this way: each piece of evidence is a brick.  You build a wall brick by brick until you have a nice solid wall.  Once you start challenging and discrediting and raising questions as to each piece of evidence (the bricks) the bricks crumble and the wall comes tumbling down. You are left with nothing more than dust and doubt. 

For one example, a bullet casing wrapped in what appeared to be blue bubblicious gum was claimed to have been found in the rented car that Aaron Hernandez drove on the night in question. However, the casing was disposed of in a dumpster by the rental car company only later to be fished out of the dumpster by police. This is a defense attorney’s biggest dream. Contaminated evidence! Break in the chain of custody! Listen, all a great criminal defense attorney has to do is create that little bit of doubt in the juror’s mind.   

            What is critical in this case and which in my opinion should have been the defense team’s three point defense is 1) Not one person ever came forward and said “I saw Aaron Hernandez shoot Odin Lloyd.” 2) The 45 caliber gun was never found. 3) No credible motive was ever established as to why Aaron Hernandez allegedly murdered Odin Lloyd.

I have many questions which for now remain unanswered. What drove Hernandez to allegedly murder two club goers over a spilled drink? What triggered him to murder his good friend Odin Lloyd with no established motive?

Is CTE a legal defense which can withhold scrutiny in a court of law? A CTE diagnosis can only be made post-mortem upon microscopic examination of the brain. Sure there are certain behaviors associated with CTE such as poor impulse control, poor judgment and anger, but can a presumed diagnosis of CTE be made based only on clinical signs and symptoms? I am going to keep an eye on this evolving slippery slope defense and the similar pattern of behavior among some NFL players. Why do concussions affect some players and not others? Why did Hernandez commit suicide? 

So what happened to the 45 caliber murder weapon? Surveillance of Hernandez in his own home shows him with what appears to be a black object/gun in his hand the night of the murder. The day after the murder, after receiving a rather cryptic text message from Hernandez, his fiancé is seen on home surveillance removing from the house a large garbage bag containing what could be a gun lock box. Or just a large box of dog food. No one will ever know. When testifying for the prosecution under an immunity agreement the fiancé claimed she could not remember where she disposed of this large bag but recalls she drove it to a dumpster. Her credibility was poor in my opinion. How could anyone believe that this smart, articulate and well put together woman forgot where she dumped a large bag containing a large box. Had she and Hernandez actually been married, spousal testimonial privilege would have applied and she never would have taken the stand.

However way this all looks, a good criminal defense attorney could have taken all this circumstantial evidence apart enough to raise a reasonable doubt in a juror’s mind that Hernandez was not involved or was taking the rap for one of his affiliate thugs.

So who is Jose Baez? He is one of the best criminal defense attorneys in the nation. He is also a high school drop out. You might remember him as the attorney who obtained an acquittal for Casey Anthony the woman accused of murdering her young daughter. In my opinion Jose Baez is so talented I believe he could have turned the prosecution’s case inside out and upside down in the Lloyd case. 

These important three points should have been all a great defense attorney needed to craft their defense and I have no doubt Jose Baez would have succeeded in turning this case on its face creating reasonable doubt in the jurors’ minds. 

I would have liked to have seen an incredible effort by the defense team and I just did not see it. His defense team never argued he was there but did not do it until closing argument when they made a last ditch effort by arguing that Hernandez was at the scene but was an innocent bystander. Too little too late. 

This whole case and outcome was a shame and a tragedy. My own opinion is if he did in fact commit the crimes in question his actions were likely due to a combination of factors including the death of his father during a pivotal point in his life, his chronic marijuana/PCP smoking, alcohol use, episodes of paranoia, his internal struggle regarding his sexuality and identity, and CTE. I think that Hernandez created real motives in his head. To him a drink being spilled on him in a club or someone staring at him set off a trigger resulting in a series of catastrophic events. 

I am so addicted to this case that I even purchased Jose Baez’s book “Unnecessary Roughness” about the Lloyd case and Baez’s success in obtaining an acquittal on the double homicide charge. I cannot wait to dig into this. What is astonishing to me is that Baez successfully obtained an acquittal in the double homicide case despite there being a witness, aka Hernandez’s ”friend” and drug lord and the prosecution’s key witness Alexander Bradley.  Bradley testified that he was with Hernandez and saw Hernandez shoot the two individuals. Baez destroyed him on the stand. He literally made a street thug drug lord cry a little.

I leave you with this-in my opinion Hernandez was deprived of a great defense team. Just imagine what Baez could have accomplished had he been Hernandez’s defense attorney in the Lloyd case. Imagine what would have happened had Hernandez not committed suicide and the Lloyd case proceeded on appeal. 

A little tidbit on Baez. I mentioned earlier that he dropped out of high school. He then joined the military and worked in intelligence, obtained his GED, Associate’s degree and Bachelor’s degree and went to law school. And he is one of the best, most reputable and esteemed criminal defense attorneys in the Country. The guy makes a statement when he walks into a courtroom. Everyone wants to be around him, everyone wants to be captivated by his presence. I mean look at the OJ case. Top notch defense team/ dream team. Everyone thought OJ did it. But he was acquitted. I wonder what the outcome would have been had there been CCTV? 🤔