We mentioned a few times over the weekend that the NFL quietly is resigned to the reality that, eventually, the antitrust class-action lawsuit filed in the name of Patriots quarterback Tom Brady and nine other players will be assigned to Judge David Doty, who handled the Reggie White antitrust lawsuit and presided over its settlement agreement (which became the CBA) for nearly 18 years.
The NFL’s intuition could end up being accurate.
The case first was assigned to Judge Richard Kyle. We picked through the paperwork filed Friday, and we found the order in which, without specific explanation, Judge Kyle recused himself from the case. Reports emerged over the weekend that the case has now been assigned, on a random basis, to Judge Patrick Schiltz (pictured).
Now, Jason Cole of Yahoo! Sports reports that Judge Schiltz is poised to step aside from the case. Per Cole, the move is expected because Judge Schiltz “once worked for the firm Faegre & Benson.” Cole explains that Faerge & Benson represents the NFL in Minnesota, and that the firm handled the Reggie White case.
But here’s the thing. The NFL, to our knowledge, has yet to hire Faerge & Benson to handle the Brady case. (If it means keeping Judge Schiltz and avoiding Judge Doty, the NFL probably wouldn’t hire Faerge & Benson.)
Moreover, this is a new case. The White case is over. If, indeed, it’s permissible for Judge Doty’s former law clerk and a self-described “Special Master” in the White litigation to represent the players in the Brady case, why shouldn’t Judge Schiltz keep the Brady case?
This thing is starting to seem a little too convenient. Unless Judge Schiltz himself personally represented the NFL in the White case, there seems to be no reason for Judge Schiltz to abandon the Brady case. To a neutral observer with some understanding of how the legal system works, there’s a chance that Judge Kyle (whose recusal looked like a stretch, given that he left the firm that locally represents the NFLPA* in 1992) and Judge Schiltz are simply getting out of the way, out of respect for Judge Doty -- or possibly at his subtle (or not-so-subtle) insistence. Both Judge Kyle and Judge Schiltz could easily justify the move to dump the Brady case by pointing to the fact that Judge Doty has extensive knowledge and experience regarding the issues. There’s also a chance that neither Judge Kyle nor Judge Schiltz are interested in having such a high-profile and potentially controversial case land on their dockets.
Still, the rules regarding recusal are clear, and the fact that Judge Kyle merely cited the relevant portion of the U.S. Code without explaining the reasons for stepping aside makes us wonder whether Judge Kyle, and perhaps Judge Schiltz, are applying an intentionally broad reading of 28 U.S.C. § 455 in order to dump the case.
Absent full details regarding the reasons for recusal from Judge Kyle, Judge Schiltz, or any other judge not named Doty who gets the case and then drops the case (there are 11 total judges assigned to the district), there seems to be a game of legal hot potato going on in the U.S. District Court for the District of Minnesota, and it possibly will continue until the hot potato lands in the hands of the jurist who’s apparently ready to split the thing open and apply generous portions of butter and sour cream.
It’s a hot potato for the NFL, too. Any effort to force Judge Kyle or Judge Schiltz or any other judge to keep the case against their will could result in an even worse situation than the league would experience with Judge Doty handling the case.