One of the most intriguing facts regarding the team of lawyers representing the players in their antitrust lawsuit filed in federal court in Minnesota is that the first name on the stack — Barbara P. Berens — previously served as a law clerk to Judge David Doty.
Judge Doty presided over the antitrust lawsuit filed more than 20 years ago, along with the settlement agreement that became the CBA. Doty’s role ended when the CBA expired, notwithstanding any remaining issues, like the “lockout insurance” case and the collusion claim filed earlier this year.
As we mentioned earlier today, the league fully expects the new case to be assigned to Judge Doty, notwithstanding the fact that it was initially assigned to a different judge.
Making the situation even more intriguing is the fact that Berens’ website states that she served as a “Special Master” in the NFL antitrust litigation.
From the union’s perspective, it made sense to hire someone who has inside information about Judge Doty’s views regarding antitrust matters arising between the NFL and the NFLPA*. From the league’s perspective, there’s likely a sense that something untoward could be going on.
In our view, it isn’t. Lawyers who previously worked for a judge often find a demand for their services in cases involving that judge. Though Berens worked on matters involving the NFL and the NFLPA*, the case on which she worked has concluded. This is a new case, filed by new players, under very different circumstances.
Though the NFL may not be thrilled with the development, the NFL could have lined up Berens to serve as what the lawyers call “local counsel” in the case, before the NFLPA hired her. Moreover, nothing stops the NFL from complementing its legal dream team with the addition of another former Doty law clerk who currently practices in Minnesota.