Hurley’s Picks: NFL Court Cases With Some Curious Questions On Judges

By Michael Hurley, CBS Boston

BOSTON (CBS) — Here in New England, many of us dimwitted football fans learned more about the legal process and the court system than we ever anticipated. And as a result of the two-year process, we not only know about en banc hearings, but we also fancy ourselves to be little legal experts.

So if you wouldn’t mind, I’d like to take a brief moment to pull out my yellow legal pad (Tops brand only, of course) and share some observations, based on my profound expertise.

My observation is this: the choice of judges for a couple of current high-profile NFL cases is awfully curious.

Let’s start with Eli Manning. You remember him, right? He plays quarterback for the New York Giants and he’s been caught up with an equipment manager in some sort of scheme to defraud some fans in an alleged memorabilia scheme. He’ll have his day in court, but interestingly enough, it won’t be his first time appearing in front of the particular judge assigned to the case.

That’s because Judge James J. DeLuca is a big-time Giants fan. Such a big fan, in fact, that he owns season tickets and personal seat licenses at MetLife Stadium. He’s been a Giants fan for nearly 60 years.

So you’ve got a Giants fan presiding over a case that affects Giants fans (and other memorabilia collectors) and also involves the Giants quarterback. Seems like a conflict of interest.

(There’s an obvious joke to be made here that, due to Manning’s lackluster performance these past two seasons, perhaps the Giants fan judge will be influenced to rule against Manning. But I will not make that joke; I am a legal professional and such boorishness is beneath me.)

Anyway, what’s really strange about the situation is that the people bringing the case have asked the judge to step aside twice. But twice, the judge has said no.

Seems strange.

Anyway, considering the fact that Judge Richard Berman used his brain to take issue with the major flaws and violations in the NFL’s process during DeflateGate yet was still nicknamed “Fanboy Judge Berman” by at least one prominent Boston sports columnist, it’s kind of ridiculous that a Giants fan of 60 years is staying on a high-profile case involving the Giants quarterback. Especially when he’s been twice requested to recuse himself.

(Additional, non-legal expert thought: Remember when everyone — literally everyone — believed everything Eli Manning said because he said it with authority? Why does that level of trust apply to some people but not others? Rafael Palmeiro once aggressively denied ever using steroids, you know. Words are meaningless. Anyway.)

Moving on to the most high-profile NFL case that won’t go away right now, the twists and turns of the Ezekiel Elliott fight against the league have been tough to follow — even for an experienced legal specialist such as myself.

But Pro Football Talk’s Mike Florio, who was a lawyer before he dedicated his life to posting sports blogs online like some silly schlub, pointed out something that seems a bit off about the judge who made the ruling this week in favor of the NFL.

Florio noted that Judge Katherine Polk Failla is married to a partner at Proskauer Rose LLP, and her judicial questionnaire states, “I would recuse myself from any cases in which Proskauer Rose is a party or is representing a party.”

While Proskauer Rose is not involved specifically with the Elliott case, the law firm was instrumental in steering the NFL during the lockout in 2011, and a Proskauer Rose attorney was present at the league meetings in 2016. The firm was not a minor part of the NFL’s representation during and through the lockout; it was quite significant.

And as Florio also noted, “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.'”

Frankly, it’s a bit odd that any Canon or Bazooka or really any type of gunnery would force a judge to admit that his or her judgement is impaired. Isn’t it kind of the premise of becoming a judge that a person must have superior judgment?

But it is on the books that “the appearance of impropriety” should lead to a judge recusing himself or herself from a case, and being married to a partner at a law firm that did a lot of work for the NFL? It would seem to fit the bill.

(Here’s where Roger Goodell would tell you something about there only being a limited number of law firms in the world and that there are bound to be some conflicts of interest with various things. But you expect that kind of doubletalk from a PR machine like him. From the actual, real-life justice system? Am I naive for expecting better?)

It’s somewhat reminiscent of when Ted Wells of the Paul Weiss firm was hired by the NFL to lead a multi-million dollar investigation into stupid deflated footballs, only to later allow NFL executive VP Jeff Pash to edit the final report as he saw fit before its public release, and then for the NFL to retain the Paul Weiss firm as counsel for Tom Brady’s appeal hearing.

But that was in fake court, where I-graduated-with-a-bachelor’s-degree-in-economics-but-by-golly-I-am-fit-to-serve-as-arbitrator Roger Goodell presided over the kangaroo court in NFL headquarters. Some tomfoolery where the NFL stacked the deck against a player it wanted to crush is to be expected.

But this Elliott judge is in real life, in a real courtroom, dealing with a real case on an accusation for a real crime.

Again, just like with the judge for Manning, it seems strange. And as all football fans learn more and more and more about the lovely legal process, we’re sure coming across a lot of warts that don’t make a lot of sense to the non-legal experts among us.

That is all. Case adjourned! (That’s a legal term, in case you’re not hip to the language.)

And hey, speaking of some highly questionable practices, I write a picks column. This is technically that picks column. But my picks have been so bad this year that I’ve suspended myself from writing opinions on the picks until/if the overall record for the year approaches being something respectable. I’m not quite there yet, so here’s what we got for Week 9.

NEW YORK JETS (+3) over Buffalo
JACKSONVILLE (-5) over Cincinnati
Baltimore (+4.5) over TENNESSEE
PHILADELPHIA (-8) over DENVER
Indianapolis (+7) over HOUSTON
Tampa Bay (+7) over NEW ORLEANS
Atlanta (+1) over CAROLINA
Los Angeles Rams (-3.5) over NEW YORK GIANTS
SAN FRANCISCO (+2) over Arizona
Washington (+7.5) over SEATTLE
DALLAS (+1) over Kansas City
Oakland (-3) over MIAMI
Detroit (-2.5) over GREEN BAY

Last week: 6-7
Season: 48-67-4

You can email Michael Hurley or find him on Twitter @michaelFhurley.

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