I’ve gotten our mitts on the many documents filed to date in the case of Tom Brady et al. v. The National Football League et al., and I’m slowly but surely reading through all of them.
Here’s one that caught my attention.
Since the Brady case was filed as a new case in Minnesota federal court, it was assigned like any new case would be assigned. Most courts employ a simple rotational system, with new cases being dealt to the judges like playing cards.
The Brady case was assigned to Judge Richard H. Kyle. Judge Kyle promptly filed an order disqualifying himself from the case and positioning it for reassignment. He gave no reason for the move, citing 28 U.S.C. § 455 as the basis for the disqualification.
Section 455 requires disqualification under certain specific circumstances pointing to an actual or potential bias, including "[w]here in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter.” Judge Kyle practiced with the firm of Briggs & Morgan at the time he was appointed to the federal bench in 1992. Briggs & Morgan served as the lead local counsel for the NFLPA* in the Reggie White antitrust case. Even if Judge Kyle never worked on the White case, Section 455 potentially would apply if any of the lawyers with whom he worked while at Briggs & Morgan handled the case. Since the White case was pending throughout 1992, this appears to be the reason for the recusal.
Some would say that same reasoning also would apply to NFLPA* local counsel Barbara Berens in the Brady case, who worked as a law clerk for Judge David Doty and who, according to her website, served as a “Special Master” in the White litigation. That said, these are two separate cases, even though one relies on certain aspects of the settlement agreement reached in the other case.
If Judge Kyle relied on his prior relationship with Briggs & Morgan during the prior case as the basis to step aside from the current case, Judge Kyle aguably applied a very broad interpretation to the rule. Perhaps he had no desire to be at the center of a three-ring circus. Perhaps he wanted to help funnel the case back to Judge Doty, the judge whom the NFL fully expects to get the case.
Or perhaps there was some other reason for the move. If the reason had been cited in the order, we’d know what the reason was. The mere fact that the reason wasn’t cited invites speculation as to the real reason -- and as to the real motive.
Stay tuned. The case likely will be reassigned on Monday, and the NFL is bracing for what it believes to be an inevitable assignment of the case to Judge Doty.
UPDATE: Will Brinson of CBSSports.com tells us that the case already has been reassigned to Judge Patrick J. Schiltz. Nominated for the bench by George W. Bush in 2005, Judge Schiltz served as a law clerk for U.S. Supreme Court Justice Antonin Scalia. Though we currently don’t know anything about Judge Schiltz’s track record of rulings, he’s likely not a liberal, which likely plays into the league’s hands.
