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White v. National Football League: USDC:CIV PRO - no allegation of actual bias; average person not same as average person with knowledge

Civil No. 4-92-906(DSD)
Reggie White, Michael
Buck, Hardy Nickerson,
Vann McElroy and Dave
National Football League;
The Five Smiths, Inc.;
Buffalo Bills, Inc.;
Chicago Bears Football Club,
Inc.; Cincinnati Bengals, Inc.;
Cleveland Browns, Inc.; The
Dallas Cowboys Football Club,
Ltd.; PDB Sports, Ltd.; The
Detroit Lions, Inc.; The Green
Bay Packers, Inc.; Houston Oilers,
Inc.; Indianapolis Colts, Inc.;
Kansas City Chiefs Football Club,
Inc.; The Los Angeles Raiders, Ltd.;
Los Angeles Rams Football Company,
Inc.; Miami Dolphins, Ltd.;
Minnesota Vikings Football Club,
Inc.; KMS Patriots Limited Partnership;
The New Orleans Saints Limited Partnership;
New York Football Giants, Inc.; New York
Jets Football Club, Inc.; The Philadelphia
Eagles Football Club, Inc.; B & B Holdings,
Inc.; Pittsburgh Steelers Sports, Inc.;
The Chargers Football Company; The San
Francisco Forty-Niners, Ltd.; The
Seattle Seahawks, Inc.; Tampa Bay Area
NFL Football Club, Inc.; and Pro-Football,
This matter is before the court upon the National Football
League Management Council’s (“NFLMC”) motion to vacate judgment
regarding Michael Vick and for recusal of the court or modification
of the final consent judgment. Based upon a review of the record
and proceedings herein, and for the reasons that follow, the
NFLMC’s motion is denied.
The instant motion arises from a longstanding dispute between
the NFLMC and the National Football League Players Association
(“NFLPA”). On September 21, 1992 - two weeks after a jury in
McNeil v. National Football League [“NFL”], No. 4-90-476, 1992 WL
315292 (D. Minn. Sept. 10, 1992), found that the NFL’s right of
first refusal/compensation rules violated federal antitrust laws -
five players filed a class action antitrust action against the NFL
challenging the NFL’s employment practices. After five months of
motion practice and negotiation, the parties entered into a
stipulated settlement agreement (“SSA”) that the court approved on
April 30, 1993. See White v. Nat’l Football League, 922 F. Supp.
1389 (D. Minn. 1993). Under Article XX of the SSA, the court
retained jurisdiction over the action to “effectuate and enforce”
the terms of the agreement and final consent judgment. (See SSA
art. XX, Doc. No. 524.) Over the years, the court approved
amendments to the SSA, with each version containing the continuing
jurisdiction provision. (See Order of Aug. 24, 2006, Doc. No.
526.) The SSA also contained a provision granting jurisdiction
over specified disputes to a Special Master agreed upon and
recommended to the court for approval by the parties. (See SSA
art. XXII.) The Special Master’s determinations bound the parties,
subject to the court’s review on appeal. (Id.); see also NFL
Collective Bargaining Agreement 2006-2012, art. XXVI. It was under
this framework that the court took up the instant matter.
On September 5, 2007, the NFLMC sought a declaration that
enforcement in a non-injury grievance of the contractual rights of
the Atlanta Falcons (“Falcons”) to recover amounts already paid to
quarterback Michael Vick (“Vick”) would not violate Article XVII,
§ 9(c) of the SSA. The Falcons argued that Vick’s guilty plea to
federal criminal dog fighting charges on August 20, 2007, triggered
several default provisions in Vick’s 2006 player contract.
Accordingly, the team sought the return of .97 million in
signing and roster bonuses. The NFLPA opposed the forfeiture, and
the parties argued the matter before Special Master Stephen B.
Burbank on October 4, 2007. He concluded on October 9, 2007, that
§ 9(c) did not prohibit the forfeiture of the bonuses paid to Vick
and conditionally determined that the NFLMC’s grievance provided no
grounds for alternative legal or equitable relief to recover any
amount that § 9(c) did protect from forfeiture. The NFLPA appealed
the Special Master’s decision, and the court received briefing and
heard arguments on the matter on November 30, 2007.
On February 1, 2008, the court affirmed in part and reversed
in part the recommendation of the Special Master. Based on recent
precedent and analysis of the SSA and collective bargaining
agreement, the court determined that § 9(c) precluded the
forfeiture of roster bonus amounts “already earned” by Vick and
that the protections of § 9(c) were not limited to contractual
forfeitures. See White v. Nat’l Football League, 533 F. Supp. 2d
929 (D. Minn. 2008). The NFLMC filed a motion to vacate the
court’s judgment pursuant to Federal Rule of Civil Procedure 59(e)
or 60(b) on February 14, 2008, alleging that the court has
demonstrated bias and prejudice in the Vick case and the ongoing
White litigation. It argues that the court should vacate its
February 1 order and either remove itself from the case or
terminate its continuing jurisdiction over the White settlement
Under Rule 59(e), the court may alter or amend its judgment
only if it finds a “manifest” error of law or fact in its ruling.
See Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir.
1988) (internal quotation and citation omitted). Such motions
serve a limited function and “cannot be used to introduce new
evidence, tender new legal theories, or raise arguments which could
have been offered or raised prior to entry of judgment.” Baker v.
John Morrell & Co., 266 F. Supp. 2d 909, 919 (N.D. Iowa 2003)
(citing Hagerman, 839 F.2d at 414).
Similarly, pursuant to Rule 60(b) the court may relieve a
party or its legal representative from a final judgment, order or
proceeding for, among other reasons, mistake, inadvertence,
surprise or excusable neglect. See MIF Realty L.P. v. Rochester
Assocs., 92 F.3d 752, 755 (8th Cir. 1996). A Rule 60(b) motion is
committed to the sound discretion of the court and is generally
disfavored. Id.; see Rosebud Sioux Tribe v. A & P Steel, Inc., 733
F.2d 509, 515 (8th Cir. 1984). Under Rule 60(b), the movant must
demonstrate “exceptional circumstances to justify relief.” Brooks
v. Ferguson-Florissant Sch. Dist., 113 F.3d 903, 904 (8th Cir.
I. Judicial Disqualification
The NFLMC argues that the February 1 order should be vacated
because of judicial bias and the appearance of partiality. In
support of its motion, the NFLMC alleges the following incidents
show bias or prejudice by the court:
• An interview with the court in the January 28,
2008, issue of Street & Smith’s SportsBusiness
Journal discussing NFL owners and the White
settlement agreement.
• An interview with the court in the July 10, 2005,
issue of the Colorado Springs Gazette discussing a
previous Rule 60(b) motion in which the NFLMC
requested that the court terminate its continuing
jurisdiction over the matter.
• An alleged series of ex parte conversations between
the court and NFLPA Executive Director Gene Upshaw
(“Upshaw”) prior to hearings before the court -
including the November 30, 2007, hearing in the
Vick matter.
Title 28, sections 144 and 455 of the United States Code govern the
recusal or disqualification of a federal judge.
A. 28 U.S.C. § 144
Section 144 provides:
Whenever a party to any proceeding in a
district court makes and files a timely and
sufficient affidavit that the judge before
whom the matter is pending has a personal bias
or prejudice either against him or in favor of
any adverse party, such judge shall proceed no
further therein, but another judge shall be
assigned to hear such proceeding.
The affidavit shall state the facts and
reasons for the belief that bias or prejudice
exists, and shall be filed not less than ten
days before the beginning of the term at which
the proceeding is to be heard, or good cause
shall be shown for failure to file it within
such time. A party may file only one such
affidavit in any case. It shall be
accompanied by a certificate of counsel of
record stating that it is made in good faith.
A successful § 144 motion requires a “showing of actual bias.”
Williamson v. Ind. Univ., 345 F.3d 459, 464 (7th Cir. 2003); see
Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 166 (3d Cir.
1993). “Rumor, speculation, beliefs, conclusions, innuendo,
suspicion, opinion” and other nonfactual matters are not ordinarily
sufficient to require recusal. See Nichols v. Alley, 71 F.3d 347,
351 (10th Cir. 1995); see also United States v. Faul, Civ. No.
3:99-41, 2007 WL 1847371, at *5 (D.N.D. June 25, 2007). Rather, to
be legally sufficient, the affidavit must provide specific facts
“stated with particularity and must be definite as to times,
places, persons, and circumstances.” Tezak v. United States, 256
F.3d 702, 717 (7th Cir. 2001). Further, the accompanying affidavit
“must strictly comply with all statutory requirements before it
will disqualify a judge.” In re Medlock, 406 F.3d 1066, 1073 (8th
Cir. 2005); see also United States v. Burger, 964 F.2d 1065, 1070
(10th Cir. 1992); United States v. Anderson, 433 F.2d 856, 859 (8th
Cir. 1970). It is the judge’s obligation “to probe the legal
sufficiency of the petitioner’s affidavit and not to disqualify
[himself] unnecessarily.” Davis v. Comm’r, 734 F.2d 1302, 1303
(8th Cir. 1984).
The NFLMC’s submissions do not meet the high bar for
disqualification set by § 144. The declarations accompanying the
motion fail to allege actual bias, focusing instead on the
appearance of prejudice. Further, the NFLMC violated the express
terms of § 144 by submitting two declarations, neither of which was
accompanied by the required certificate of good faith. Moreover,
neither submission adequately explained the delay in filing a
motion that was based largely on events occurring years before the
Vick decision. Indeed, the NFLMC filed its motion ten days after
the adverse judgment and gave no adequate reason for ignoring
§ 144's requirement that the allegations be made ten days before
the hearing. For these reasons, the court will not disqualify
itself pursuant to 28 U.S.C. § 144.
B. 28 U.S.C. § 455
Section 455 is divided into two subsections. Section 455(a)
sets forth a general declaration for disqualification while
§ 455(b) lists specific instances in which disqualification is
required. See Microsoft Corp. v. United States, 530 U.S. 1301,
1301 (2000). The statute provides:
(a) Any justice, judge or magistrate judge of the United
States shall disqualify himself in any proceeding in
which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following
(1) Where he has a personal bias or prejudice
concerning a party, or personal knowledge of
disputed evidentiary facts concerning the
28 U.S.C. § 455.
To determine whether Rule 59 or 60 relief is appropriate based
on a violation of § 455, the court considers the risk of injustice
to the parties, the risk that denial of relief will cause injustice
in other cases and the risk of undermining public confidence in the
judicial process. See Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847, 863 (1988). Under either subsection, the
honesty, integrity and impartiality of judges is presumed;
therefore, a party seeking recusal bears the substantial burden of
proving otherwise. See United States v. Martinez, 446 F.3d 878,
883 (8th Cir. 2006); Dyas v. Lockhart, 705 F.2d 993, 997 (8th Cir.
1. Section 455(b)(1)
As with § 144, § 455(b)(1) concerns a judge’s actual bias or
prejudice. The bias or prejudice “must be personal and
extrajudicial; it must derive from something other than that which
the judge learned by participating in the case.” United States v.
Amedeo, 487 F.3d 823, 828-29 (11th Cir. 2007) (citation omitted).
Opinions held by judges as a result of what they learned in earlier
proceedings do not constitute bias or prejudice. See Liteky v.
United States, 510 U.S. 540, 551 (1994).
The NFLMC’s § 455(b)(1) motion, like its § 144 motion, fails
for lack of demonstrable bias. Despite claiming § 455(b)(1)
relief, the NFLMC devotes no more than a few lines to that
subsection in any of its moving papers and cites little besides the
adverse result to support its allegations of actual bias. An
unfavorable judicial ruling, however, “does not raise an inference
of bias.” Harris v. Missouri, 960 F.2d 738, 740 (8th Cir. 1992).
Accordingly, the court denies the NFLMC’s motion for § 455(b)(1)
1 The NFLMC also suggests that the pictures of the undersigned
with a football in his hands accompanying one of the articles
demonstrate bias and prejudice. This argument, made without any
legal support, borders on frivolity, and the court will not address
it herein.
2. Section 455(a)
The NFLMC argues that the court’s public comments and ex parte
meetings with Upshaw satisfy § 455(a)’s objective standard and
warrant disqualification.1 Section 455(a) is a “catchall” recusal
provision, covering both “interest or relationship” and “bias or
prejudice” grounds but requiring them all to be evaluated on an
“objective basis.” See Liteky, 510 U.S. at 548 (internal
quotations and citation omitted). Thus, whether a judge is
actually biased is irrelevant - the “issue is ‘whether the judge’s
impartiality might reasonably be questioned by the average person
on the street who knows all the relevant facts of the case.’”
Scenic Holding, LLC v. New Bd. of Trs. of the Tabernacle Missionary
Baptist Church, Inc., 506 F.3d 656, 662 (8th Cir. 2007) (quoting
Moran v. Clarke, 296 F.3d 638, 648 (8th Cir. 2002) (en banc)). The
“relevant facts” are the “facts as they existed, and not as they
were surmised or reported.” Cheney v. U.S. Dist. Court for the
Dist. of Columbia, 541 U.S. 913, 914 (2004).
As to the public comments, the NFLMC maintains that several
quotations from the January 28, 2008, and July 10, 2005, articles
give the appearance of bias. It cites the following statements:
• “[NFL owners] pretend they’re getting beaten
around. Well, they did, initially, but they had a
position that was not legally sound.” (Levy Decl.
Ex. 1.)
• “I think if you ask [NFL Commissioner Paul]
Tagliabue, he would say, ‘The whole thing has come
out our way.’ Because, even though they complain
about it ... all they’ve done is make tons of
money.” (Id.)
• “I could walk away from this case. But there’s one
problem: I know that I know too much. They know,
including the NFL guys, that they don’t have to reeducate
me every time they show up here.” (Id.)
• “It was just an off-handed comment [about
discontinuing the court’s jurisdiction over the
settlement agreement]. But a few days later I
received a letter from the owners’ group
requesting, based on what I said, that I remove
myself from matters involving the NFL and the
players’ union. I laughed at the letter and wrote
them a letter kindly denying their request. They
would have loved for me to be out of the way. But
the letters were good-natured fun.” (Id. Ex. 2.)
The NFLMC maintains that these comments violate Canon 3(A)(6) of
the Judicial Code of Conduct and would lead a reasonable person to
question the judge’s impartiality. It argues that the comments
demonstrate a bias against the NFL clubs and demonstrate an
unwillingness to objectively reconsider issues like the court’s
continuing jurisdiction.
Canon 3(A)(6) provides that a judge “should avoid public
comment on the merits of a pending or impending action.” The Code
and § 455(a) are not coextensive, and any public comments must be
considered in the context in which they were issued. See In re
2 Although styled as a dispute between the NFLMC and the
NFLPA, the substance of the Vick matter was a dispute between Vick
and the Atlanta Falcons over contract incentives - neither of whom
were discussed in the articles.
Boston’s Children First, 244 F.3d 164, 168 (1st Cir. 2001); In re
Barry, 946 F.2d 913, 914 (D.C. Cir. 1991); United States v.
Haldeman, 559 F.2d 31, 132-36 (D.C. Cir. 1976). Nevertheless, the
general rarity of such public statements and the ease with which
they may be avoided make it more likely that a reasonable person
will interpret the statements as evidence of bias. See In re
Boston’s Children, 244 F.3d at 170; In re Allied-Signal, Inc., 891
F.2d 967, 971 (1st Cir. 1989).
Here, the NFLMC’s reliance on Canon 3(A)(6) is misplaced.
None of the January 28 or July 10 comments was remotely related to
a pending matter.2 Indeed, the Colorado Springs Gazette article
was published years before the Vick matter was filed and the
SportsBusiness Journal article - supposedly damning because it
appeared while the Vick matter was sub judice - contains no
reference whatsoever to Vick, the Falcons or pending issues.
Further, the NFLMC’s finding of bias in the comments requires a
results-oriented reading of the quotations divorced from their
context. Each article focused on the history of the NFL’s
collective bargaining agreement and the role of the court in that
process, and neither featured quotations or analysis that
demonstrated partiality. (See Levy Decl. Exs. 1, 2.) Instead, the
court praised the leadership of both the NFLMC and the NFLPA and
suggested that both sides had benefitted from the agreement reached
over fifteen years ago. Moreover, although the court did not give
a legally detailed explanation of its response to the NFLMC’s
previous motion to terminate the court’s ongoing jurisdiction, the
eight-page written order on the fully briefed matter demonstrates
the seriousness with which the court considered the issue. (See
Order of Dec. 23, 1997, Doc. No. 444.)
As to the NFLMC’s claim that the comments, when viewed
collectively, and the meetings with Upshaw create the appearance of
bias, the court disagrees. The NFLMC places undue emphasis on the
way an “average person” would view the comments and meetings; the
true test for § 455(a) purposes is the manner in which an “average
person ... who knows all the relevant facts of the case” views the
situation. See Scenic Holding, 506 F.3d at 662 (emphasis added).
That well-informed average person would understand the long history
of the dispute between the NFLMC and the NFLPA and impute no bias
to comments that merely reflected upon that history. That same
average person would also think little of the meetings with Upshaw,
aware that the practice grew out of the 1992 trial and negotiations
in which all parties were invited to and did frequent chambers,
that nothing about the merits of any case was ever discussed, and
that such meetings also preceded the 1995, 1997, 2000 and 2001
decisions in which the court found for the NFLMC. In short, that
average person would consider the comments and meetings in light of
the unique facts of this case - especially the familiarity of all
parties gained over the court’s long involvement with the matter -
and conclude that the court possesses the utmost respect for both
sides but considers each matter before him as an indifferent
arbiter, devoid of bias or prejudice. Accordingly, there has been
no injustice to the parties nor is there a risk of undermining
public confidence in the judicial process, and the § 455(a) claim
For these reasons, the court denies the NFLMC’s motion to
disqualify pursuant to 28 U.S.C. §§ 144, 455(a) and 455(b)(1), and
it will not vacate judgment under Rule 59(e) or 60(b) in the Vick
II. Modification of Final Consent Judgment
The NFLMC moves in the alternative for the court to modify the
final consent judgment and terminate its jurisdiction over the
stipulated settlement agreement. In so doing, the NFLMC again
takes up an issue it first raised in 1997. It argues now, as it
did then, that the ratification of the NFLPA as the collective
bargaining agreement representative of the players and the
emergence of a more cooperative bargaining relationship between the
clubs and their players are factual changes warranting modification
of the settlement agreement. It further maintains that the Supreme
Court’s decision in Brown v. Pro Football, Inc., 518 U.S. 231
(1996), created a change in legal circumstances that supports
modification in this case and that the court’s fifteen years of
continuing jurisdiction is enough.
The court has considered these arguments anew but reaches the
same conclusion as it did in 1997. As then, there is no agreement
between the parties to terminate the court’s jurisdiction.
Instead, the NFLPA actively opposes the NFLMC’s motion to modify
the settlement agreement. Further, no evidence suggests that the
relationship between the two parties is more harmonious now than it
was when they entered into the settlement agreement, and nothing in
Brown limits the court’s jurisdiction over the terms of the
agreement in this case. Indeed, there has been no change in law or
fact in this case to justify terminating the court’s ongoing
jurisdiction, a bargained-for feature of the settlement agreement.
Accordingly, the court denies the NFLMC’s motion to modify the
Therefore, IT IS HEREBY ORDERED that the NFLMC’s motion to
vacate judgment regarding Michael Vick and for recusal of the court
or modification of the final consent judgment [Doc. No. 575] is
Dated: April 22, 2008
s/David S. Doty
David S. Doty, Judge
United States District Court


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