Initial judge steps aside from Brady case

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 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.

33 responses to “Initial judge steps aside from Brady case

  1. He probably did exactly what they do for Brady on the field..make up the rules as you go along. Tuck rule anyone?

  2. Why is suit by an employee from Massachusetts against an employer based in D.C. being filed in Minnesota?

    Oh yeah, Brady wants Momma Doty to help him.

  3. Am I the only person who thinks that Doty should remove himself for the same reason? I mean he has already ruled in favor of the players in the past so it could be argued at an appeal level that he has shown a consistent bias and therefore lacked the ability to me impartial in this new case.

  4. Good — and that is coming from a bleeding heart liberal. Bleep the NFLPA*. I hope the players get destroyed in court and now I want 18 games. The NFLPA should regroup because they’re gonna need new leadership come this summer. DeMariuce Smith is the most hated person across all sports and all teams.

  5. I just spoke to Al, of “Brady et al”. He wants off the case too. He is sick and tired of being dragged into court as part of squabbles he knows nothing about. Al thinks they just pulled his name out of the phone book or something. He isn’t even a fan of Brady, although his wife thinks he is hot.

  6. “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……”


    I am sure Judge Schlitz appreciates your insinuation that his political leanings (one way or the other) would lead him to disregard case law and precedent in his rulings.

  7. chapnastier says: Mar 12, 2011 10:09 PM

    Am I the only person who thinks that Doty should remove himself for the same reason?


    Not at all. There are legions of clueless folks that post on here that would share that view

  8. Brady has some balls suing the league after the protection and rules changes he (and Peyton too) gets.

  9. What leagal basis does anyone have to claim bias by Judge Doty on any of the CBA or other matters?

    Just because the NFL has lost some prior rulings does not mean bias-it just likely means that the law was against them. In fact, just look at the recent ruling on the TV contracts. Does any reasonable person actually believe that the owners did not violate that section of the CBA by accepting less than full value contracts in return for lockout insurance funds which only benefitted the owners?

    If he ruled differently it would have been a travesty.

  10. He probably did exactly what they do for Brady on the field..make up the rules as you go along. Tuck rule anyone?

    If you’re a fan of football you’d know that the tuck rule was put in 4 years before Brady was even in the NFL. The guy’s fighting for the game we all love to be played, but you still let your biases get in the way, stay butthurt.

  11. Doty is old. If this new anti-trust suit is initially handled by him, it will suddenly be transfered to somebody else when he dies, 5 or 10 years from now.

    Might as well have somebody new handle it from the start.

  12. It’s amusing for anyone to suggest that because Judge Schiltz clerked for Justice Scalia, that necessarily means he will be pro-business, and not pro-union in the context of antitrust actions. Using that logic, the NFL should want Judge Doty, who was nominated to the federal bench by President Ronald Reagan.

  13. Chaps – please list all the cases that Judge Doty has ruled on involving the NFL and the players and his verdicts. Since you make constant pronouncements about his judicial bias, I can only expect that you are perfectly versed in each of the man’s rulings. It would be most helpful to those of us that can’t spend 9-6 Monday thru Friday posting on these boards while collecting a paycheck from a boss that is clearly not getting your best work, like you do, if you would go over every case and verdict in detail so we understand his bias as well as you do. Please remember to cite all relevant legal precedents that Judge Doty overlooked and/or ignored, so we can see his bias more clearly. It’s important for us to understand how he is ignoring legal precedent and engaging in judicial activism. With your depth of legal knowledge and your years of legal experience, you are uniquely qualified to judge the Judge. Because we all know you don’t spend all day talking out your a** when you have absolutely no idea what you’re talking about. After all, what did you pull on your LSATs? 120?

  14. raider316 says:
    Mar 12, 2011 9:54 PM
    He probably did exactly what they do for Brady on the field..make up the rules as you go along. Tuck rule anyone?


    LOL….Brady didn’t “cheat”!!! That was the RULE…2nd if you want to eroniously “blame” someone why not the refs???

    3rd…get the @#$% OVER IT!!!!!

  15. Scalia’s record makes Reagan look like Ted Kennedy. Scalia never would have raised the SS tax; Poll Tax maybe, but not SS.

  16. east96st says:
    Mar 13, 2011 1:07 AM

    Gold! Pure gold!!

    Also, it’s not just Brady’s case, I believe it is other NFL players on the docket too.

  17. My overly simplistic mind has one question: Why do the courts have to be the arbiter of a private transaction? The owners have to decide what they are willing to pay and the players have to decide what they’ll play for. The courts should butt out.

  18. @ east

    I guess they aren’t going to post my witty response to your dribble so I will just break it down like this….. Doty ruled in favor of the players in the Reggie White case and also he Ruled in favor of Michael Vick which allowed him to keep his 16 million dollar signing bonus after he was busted for the dog fighting thing.

    Thanks for playing.

  19. Doty has ruled 26-4 in favor of the players. No bias here. He keeps ruling in the star caps case for the players and is overturned each time.

  20. Chaps – funny how when you’re asked for facts, it always becomes “dribble”. You spout your garbage here day and night and NEVER back up ANY of your words with actual facts. No surprise there. You won’t let facts get in the way of YOUR bias. Just because a Judge ruled in favor of the players in the cases you mentioned does NOT prove bias. Unless you can cite SPECIFIC legal precedents that he ignored or went against, he may have very well passed the judgements that he did because the law favored the players in those cases. Please remember that Judge Doty does not write the laws. That is the job of the Legislative Branch. He is merely the man who has to apply them in the cases that come before him. I am not a lawyer. I do come from a legal family and I respect the fact that unless you are FULLY versed in the law and familiar with ALL the specifics in a particular case, you CANNOT say that a Judge’s ruling is wrong. The law is flawed. Any honest lawyer will admit that. Judge Doty may not have even agreed with his decision on a personal level. However, he is obligated by law and oath to enforce the law that exists on the books at the time of the ruling. You may not LIKE his ruling, but that’s your opinion. It does NOT mean he’s biased. Also, if the judgement was blatantly unfair and incorrect, than one could assume that the owners would win handily on appeal. I have not studied the cases that have gone before Doty, so I won’t be so pompous to assume to judge the man. Again, seeing how some of the best lawyers in the country are on the owners payroll, it would be highly likely that Judge Doty’s rulings would be overturned on appeal if he was as “biased” as you claim. My brother is a very highly paid corporate lawyer who gets paid obscene amounts of money to study and expose any flawed rulings that went against his clients. He has a pretty solid record of winning appeals. I suspect the NFL lawyers could do as well if not better if there was a blatant disregard of the law. If you have the legal background to show that he did, indeed, misinterpret the law prove it here and it begs the question why aren’t you on the owners legal team. Otherwise, you’re just a fool spouting nonsense that conforms with your uneducated and naive view of the world.

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