When I saw that the NFLPA lawsuit filed Wednesday in Minnesota had been assigned to Judge Richard H. Kyle, the name rang no bells. It should have.
As noted by Gabe Feldman of Tulane Law School, the antitrust lawsuit filed in 2011 against the NFL by, among others, Tom Brady initially was assigned to Judge Kyle. And Feldman’s tweet includes a link to the PFT story from 2011 regarding Judge Kyle’s prompt decision to step aside from the case.
At the time, Judge Kyle cited 28 U.S.C. § 455 as the basis for the move. 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.”
As explained in the 2011 PFT post (which carries my name but which I have no recollection of writing), Judge Kyle practiced with the firm of Briggs & Morgan at the time he was appointed to the federal bench in 1992, and Briggs & Morgan served as the lead local counsel for the NFLPA in the original 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.
But there’s a big difference between the 2011 antitrust lawsuit and the current controversy. The complaint filed by Brady and other players following the expiration of the labor deal that traced back to the original Reggie White antitrust lawsuit, giving the two cases a real connection.
The current case has no connection to claims of antitrust or anything else that would be related to the case that Judge Kyle’s former firm was handling. Although his former firm represented the NFLPA, he apparently had no involvement in the representation.
Thus, recusal seems less likely in this case.
Of course, the NFLPA may secretly be rooting for a recusal, in the hopes that the case will land back on the docket of Judge David Doty. Even if Judge Kyle keeps the case, the NFLPA will argue that Judge Doty’s decision from earlier this year in the Adrian Peterson lawsuit should be applied to the Tom Brady case, since it stands for the proposition that the NFL must give players proper notice of the things for which they can be disciplined.