On Monday night, Judge Katherine Polk Failla dissolved the temporary restraining order blocking the suspension of Ezekiel Elliott, clearing the way for a six-game banishment. On Tuesday morning, an interesting fact has emerged regarding the person to whom the Elliott case was assigned.
The judicial questionnaire signed by Judge Failla in June 2012 includes this statement and commitment: “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.”
Proskauer Rose wasn’t representing the NFL in the Elliott case, but a prominent Proskauer Rose attorney was heavily involved in the negotiation of the labor deal that ultimately was at issue in Elliott’s case.
Bob Batterman, a/k/a “Lockout Bob” (pictured), became a key (and at times notorious) figure in the months and years leading up to the 2011 work stoppage that resulted in the current Collective Bargaining Agreement. He presumably continues to consult with the league, as evidenced by his presence at the 2016 NFL annual meeting.
Again, Proskauer Rose wasn’t, and isn’t, actively representing the NFL in this case. However, Canon 2 of the Code of Conduct for United States Judges compels all federal judges to avoid not only impropriety but also the appearance of impropriety. From Canon 2: “An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired.”
Would a reasonable mind conclude that Judge Failla’s impartiality is impaired by the past and apparently ongoing business relationship between the NFL and Proskauer Rose, especially when the very document at issue in the case is the document Proskauer Rose helped the NFL craft?
It may seem a bit picky, but consider this: After Judge Richard Berman ruled in favor of Patriots quarterback Tom Brady two years ago, it came to light that Judge Berman was present at a party attended by Patriots owner Robert Kraft, and that a person who worked at the same law firm as Judge Berman -- from 1970 to 1974 -- was serving with Kraft on the 38-member Columbia University Board of Trustees Emeriti.
As potential conflicts of interest go, Judge Failla’s seems much more significant. With a small army of federal judges assigned to the U.S. District Court for the Southern District of New York, why not avoid any potential appearance of impropriety and ensure that the case wouldn’t be resolved by the spouse of a lawyer who works for the firm that wrote the CBA?
