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The CTE Defense
By Jeff Mount Posted in Culture, NFL on October 3, 2017 0 Comments
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A defense that the NFL is not looking forward to 

Here’s something to ponder:

What happens if Ezekiel Elliott stands up in the hearing or his appeal of his suspension in a couple of weeks and says that he beat up his girlfriend because of CTE? Aside from Roger Goodell soiling his $3000 suit, what else would happen? Because CTE can presently only be detected after death, there would be no way to prove Elliott right or wrong. But, given that CTE was discovered in 87 and 99 percent of NFL players’ brains tested, the odds would certainly be in Elliott’s favor if he claimed that he wasn’t responsible for his behavior.

The NFL has already made it clear that it isn’t interested in mitigating circumstances when it comes to player conduct. The Elliot issue will be decided by the Fifth Circuit Court of Appeals, and, since there would be no precedent for what Elliott would be claiming, the outcome might hinge on whether the judge feels like setting one. The league might claim that one year of NFL football would not be enough to affect Elliott severely enough to cause his actions, but his attorney would certainly point out that Aaron Hernandez only played three years. The reality is that most professional players play more than half of their football before they get to the NFL; thus, more than likely accruing most of their brain damage during that time span. The NFL probably won’t hesitate to use that fact to deflect responsibility if the suit by Hernandez’s estate blaming the league for his CTE, and thus his murder conviction, gets far enough to make it necessary.

Let’s take this one step further. What if Hernandez’s attorneys had been aware of his client’s CTE diagnosis, or even been vaguely aware of the overwhelming odds that he had some degree of it, during his trial two years ago? Would they have been as quick to resort to that as a defense as they have been using it to excuse his behavior now that the diagnosis has been confirmed? This is not an abstract thought. As you read this, there are dozens of current NFL and college football players who are charged or indicted for violent crimes. It wouldn’t take a lot of logical gymnastics for a slick defense attorney to draw a thread linking violent acts of people already diagnosed with CTE — including suicides — to the fact that any random player already likely has CTE to some extent, concluding that they were not responsible for the acts of which they are accused.

A defense attorney has an obligation to use any available tactic to secure a not guilty verdict, so it would be almost negligent not to try this. There is still a lot we don’t know about CTE. We will never know, for example, if Aaron Hernandez would have still been a criminal if he’d pursued a career in real estate, but we do know that many football players get CTE and that many football players do violent things off the field. Does that prove causation? Not at all. Does it provide a mitigating circumstance to a jury that is instructed to give the defendant the benefit of the doubt? Maybe.

We also know, though, that in order to play football at the highest levels, you have to be slightly more comfortable with violence than, say, the average accountant. While the Venn Diagram of people who are comfortable enough with violence to play in the NFL includes people who have gone on to serve on the Supreme Court and perform with symphony orchestras, it is logical to assume it also includes a few who are drawn to it because it allows them to indulge impulses that, off the field, would get them arrested.

Was Aaron Hernandez drawn to football because he had a propensity towards violence, or did that propensity develop due to the damage football did to him? Probably some of both, although the fact that the vast majority of NFL players lead exemplary lives makes you lean toward the former. But there’s already enough evidence of men undergoing radical changes in personality because of CTE that you cannot be sure. And when an NFL player stands before a judge and blames CTE for some sort of violent behavior, as will inevitably happen, we will have no way to be certain whether he is using a convenient excuse or is truly unable to control himself.



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