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Foul? Did Elliott Judge Have Personal Stake in Case?

Yesterday New York district Judge Katherine Failla delivered a stunning blow to Cowboys running back Ezekiel Elliott and the NFLPA by reinstating his suspension. She also delivered a roaring victory for the NFL on every one of its arguments.

Many legal minds, myself included, were stunned by this decision especially since two weeks ago Failla’s colleague Judge Paul Crotty placed Elliott’s suspension on hold citing “serious questions” over the fairness of the NFL’s arbitration. The hold was temporary until Failla returned from vacation.

Judge Crotty also felt Elliott would be irreparably harmed if he had to serve the suspension before his case was heard. Crotty’s sentiments were also expressed in decisions by a District Judge in Texas and Appellate Judge in Louisiana who also felt the case deserved review prior to Elliott serving his suspension. Two additional appellate Judges in Louisiana also felt there could be reviewable issues in this case.

In stark contrast, a lone Judge Failla ruled that the case was not likely to succeed, that a court shouldn’t interfere with the arbitration decision and that the NFL and not Elliott would be harmed if it could not enforce its domestic violence policy right away.

Less than 24 hours after the Judge’s ruling, her decision is under public scrutiny after rumors surfaced that her husband John Edward Failla is a partner for Proskauer Rose, LLP which represented the NFL in its CBA negotiations.

I have confirmed that John Failla, a partner at Proskauer is the Judge's husband. In fact, the two worked together at the law firm Morgan, Lewis & Bockius LLP before he moved to Proskauer and she took the bench. (Perhaps that's where they kindled their romance).

In her Senate Questionnaire, prior to being appointed to the bench, Failla said,

“My husband is a partner at the law firm of Proskauer Rose LLP. I would recuse myself from any cases in which Proskauer Rose is a party or is representing a party. In addition, I would recuse myself from any matter involving a member of my immediate family, including my siblings.”

However, Failla did not recuse herself from Elliott's case. Failla’s husband is a partner in the insurance recovery department of Proskauer, which is an unrelated division that is not involved in this case. Proskauer is also a huge law firm. In Elliott’s case, Proskauer is not a party and is not directly representing a party. But, it did represent the NFL regarding the language and negotiation of the CBA, which is being directly challenged in this case. The sum and substance of those negotiations could have become a part of the case and lawyers may have been called to testify on the intent of the CBA language.

Did the Judge's association with Proskauer influence her decision?

Throughout Failla’s heavily pro NFL opinion, she stresses the importance of protecting the League’s interest in upholding the terms of the CBA & enforcing its Personal Conduct Policy.

She writes, “Having negotiated with the NFLPA over the terms of a particular CBA, the NFL has an interest in obtaining the benefit of its bargain — an interest that might well be eroded if courts such as this one were permitted to micromanage the disciplinary decisions of the Commissioner. What is more, the NFL has a critical interest in ensuring player compliance with the PCP, particularly in the area of combating off-the-field misconduct. Indeed, all parties to this litigation are keenly aware of recent criticisms of the NFL’s efforts to redress and combat domestic abuse by NFL players. Put simply, Elliott’s personal concerns, while not insubstantial, are outweighed by the broader, league-wide concerns proffered by the NFLMC.”

The sanctity of the CBA and the negotiation process forms the basis for most of her opinion which is premised on the fact that the courts should not interfere with or even review an arbitration decision absent an exceptional circumstance.

Failla, a well-respected, Harvard educated lawyer, bases her opinion on sound legal reasoning, prior precedent and appears to uphold the Brady ruling that courts should hesitate to disrupt arbitration awards. Her decision is also a drastic departure on all points from those of other Judges who have examined this case.

Also, this proceeding was a request for an injunction to hold the suspension until the case is reviewed and not a decision on the merits. Failla’s decision will effectively prevent a meaningful decision on the merits because the suspension will be served before it can be vacated or upheld. Even in Brady, the court fully heard and decided the case before the suspension took effect.

Was she legally required to recuse herself?

Under 28 U.S. Code Section 455, Judges should disqualify themselves in any proceeding in which “impartiality might be reasonably questioned.”

Failla’s impartiality is already being questioned due to her husband’s partner status in Proskauer, therefore it would have been reasonable for her to assume this would happen and she could’ve easily recused herself.

Judges shall also disqualify themselves:

1. Where she has a personal bias or prejudice concerning a party, or knowledge of disputed facts

2. She knows that a spouse has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

3. She or her spouse,

  • Is a party to the proceeding, or an officer, director, or trustee of a party;

  • Is acting as a lawyer in the proceeding

  • Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

  • Is to the judge’s knowledge likely to be a material witness in the proceeding.

Further, a judge should make a reasonable effort to inform himself about the personal financial interests of his spouse. A “financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party.

While Failla’s husband has no direct financial interest in this case, he has a potential financial interest in the outcome of the case. Since Failla is a partner at Proskauer he shares in the firm’s profits, presumably from all cases it handles. Proskauer has represented the NFL in its CBA negotiations and may be retained in upcoming negotiations. The outcome could directly effect future CBA negotiations and the NFL's choice of attorneys. Furthermore, Proskauer was paid to negotiate the language and terms of the CBA which are being directly challenged in the case. The Judge is financially tied to Proskauer through her husband’s financial interest. Therefore, it would have been proper to recuse.

The Judge was not required to recuse herself since she can argue that her husband’s connection to the case is too distant to be impactful and Proskauer is not involved in the present case. If a Judge has an indirect relationship, he or she may stay on the case as long as the Judge feels it is possible to set aside that interest and impartially decide the case.

If a Judge does not voluntarily recuse themselves, either party may request they be recused. A refusal by the Judge to recuse can be challenged on appeal.

Can the Judge's decision be overturned on appeal because of her husband's affiliation?

The NFLPA did not ask for this Judge to remove herself from the case. Further the NFLPA did not challenge her neutrality during the proceedings or put any objections on the record. It’s important to do so because appeals are generally reserved for issues that arise during the proceedings. Challenging her decision after it’s issued may look like sour grapes on the part of the NFLPA.

The NFLPA can try to claim that it discovered the conflict after her decision. This will be a harder appeal to win, but an argument can be made to set aside her decision on this basis. In order to win this argument, the NFLPA will have to try and prove that the Judge would not have ruled the way she did but for her bias or personal interest in the case. While proving bias can be quite hard in general, showing that a relative of the Judge has an interest or connection to the case is a circumstance where courts have determined there is a legitimate conflict. While it may be an uphill battle, merely mentioning the potential conflict of interest in combination with other legal arguments could persuade the Court of Appeals to overturn the decision, even if it doesn’t directly rule on whether the Judge should have been disqualified.