                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 08-2001
                                  ___________

Reggie White; Michael Buck, Hardy        *
Hardy Nickerson; Vann McElroy;           *
Dave Duerson,                            *
                                         *
              Appellees,                 *
                                         *
       v.                                *
                                         *
National Football League; The Five       *
Smiths, Inc.; Buffalo Bills, Inc.;       *   Appeal from the United States
Chicago Bears Football Club, Inc.;       *   District Court for the
Cincinnati Bengals, Inc.; Cleveland      *   District of Minnesota.
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.; Pro-Football, Inc.,               *
                                        *
             Appellants.                *
                                   ___________

                             Submitted: March 12, 2009
                                Filed: November 10, 2009
                                 ___________

Before WOLLMAN, RILEY, and COLLOTON, Circuit Judges.
                           ___________

WOLLMAN, Circuit Judge.

       Since the entry of a 1993 consent decree, the district court1 has overseen the
enforcement of a settlement in an antitrust class action brought by the above-named
class members against the National Football League and its member clubs (NFL or
League). Throughout that time, the district court has resolved numerous disputes over
the terms of the Stipulation and Settlement Agreement (settlement agreement) and
parallel Collective Bargaining Agreement (CBA) that govern player employment in
the NFL.

       In August 2007, Michael Vick, then quarterback for the Atlanta Falcons, pled
guilty to federal dog fighting charges. The NFL Commissioner thereafter suspended
Vick indefinitely without pay, and the League initiated a grievance procedure seeking
a declaration that the Falcons could recover certain bonus money that had been paid
to Vick with the expectation that he would play football through 2014. Class counsel
and the National Football League Players Association (Association) challenged the
recovery as violative of anti-forfeiture provisions contained in the settlement
agreement and CBA. Special Master Stephen Burbank issued an opinion that the


      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.

                                         -2-
Falcons were entitled to recover the amounts sought. The decision was appealed to
the district court, which entered an order (Vick Order) stating that the bonus payments
were already earned and thus not subject to forfeiture. The League then filed a Rule
60(b) motion to vacate the district court’s judgment, arguing that (1) the district
court’s oversight of the consent decree should be terminated because of intervening
changes in the law and factual circumstances and (2) the district judge should remove
himself from the case because of the reasonable perception that he was biased. The
district court denied the motion. The League now appeals from the Vick Order and
the denial of its Rule 60(b) motion to vacate the judgment. We affirm.

                                I. Factual Background

                        A. The White Settlement Agreement

       The 1993 settlement represented the resolution to a decades-old dispute
between football players and team owners. Although professional football generates
significant revenue, players and owners often have differing ideas about how the
money should be spent. Owners desire cost-cutting mechanisms such as salary caps
and player drafts; players want free agency and competition among clubs for the best
talent. For many years, team owners worked together to minimize labor costs,
instituting, for example, the Rozelle Rule—a measure that virtually eliminated free
agency by requiring any team acquiring a free agent to compensate the player’s
original team. This court’s decision in Mackey v. National Football League, 543 F.2d
606 (8th Cir. 1976), ended that practice, holding that the Rozelle Rule violated
antitrust law as an impermissible restraint on competition for player services. The fact
that the Rozelle Rule was unilaterally implemented by team owners was critical to our
holding, because we recognized that a similar collectively bargained provision would
have been shielded from antitrust liability by the nonstatutory labor exemption to the
antitrust laws. See id. at 615-16.



                                          -3-
       The players’ initial antitrust victory was short lived, for following the ruling in
Mackey the owners used their leverage in collective bargaining to reestablish the
status quo, exchanging the Rozelle Rule for similar collectively bargained provisions
that were impervious to antitrust attack. See Powell v. National Football League, 930
F.2d 1293, 1304 (8th Cir. 1989) (holding that the collectively bargained “Right of
First Refusal/Compensation” system was not subject to antitrust liability). The
Association organized strikes in 1982 and 1987, but those efforts failed to win free
agency or other desired changes in League rules. Consequently, in 1989 the
Association chose to decertify as a union and abandon collective bargaining in favor
of renewed antitrust litigation.

      After several successful antitrust lawsuits brought by individual players, Reggie
White and four other named plaintiffs filed a lawsuit in the United States District
Court for the District of Minnesota on behalf of

      (i) all players who have been, are now, or will be under contract to play
      professional football for an NFL club at any time from August 31, 1987,
      to the date of final judgment . . . and (ii) all college and other football
      players who, as of August 31, 1987, to the date of final judgment . . .
      have been, are now, or will be eligible to play football as a rookie for an
      NFL team.

The complaint sought antitrust injunctive relief and damages stemming from various
League rules, including the mandatory right of first refusal system, the standard NFL
contract, and the college draft. On April 30, 1993, the district court approved a
consent decree that provided the players with monetary relief and made a variety of
significant changes to League rules. The agreement also allowed for the
recertification of the Association and the resumption of the collective bargaining
relationship between the players and the owners. Additionally, the settlement stated
that the district court would retain jurisdiction over the enforcement of the agreement



                                           -4-
through appointment of a Special Master, who would hear disputes subject to review
by the district court.

       Since the original approval of the settlement agreement, it has been amended
five times, most recently in 2006. Each time, the enforcement jurisdiction of the
district court has been retained as part of the agreement. A new CBA was also formed
in 1993, with terms mirroring those in the settlement agreement. Thereafter,
whenever the parties have agreed to change a provision in the CBA, a conforming
change has also been made to the settlement agreement. In the event of a conflict, the
provisions in the settlement agreement trump the CBA.

                            B. Michael Vick’s Contract

       One of the changes to the settlement agreement in 2006 was the addition of an
anti-forfeiture provision, the effect of which was to limit the instances in which
players would have to return money to their teams. Guaranteed income is coveted by
football players, due to the high risk of injury and the fact that the standard NFL
contract allows a team to cut a player who does not meet expectations. As a result,
players commonly negotiate bonus payments in addition to their yearly salary. The
bonuses may be guaranteed for skill or injury—thus allowing a player to keep the
money in certain instances in which the remainder of his contract (i.e., yearly salary)
is terminated.2 Although some of the terms of individual player contracts may vary,
a contract cannot provide for forfeiture that is prohibited under the terms of the
settlement agreement and CBA.

       In 2004, Vick negotiated a contract with the Atlanta Falcons to play football for
the team through 2014. In addition to a yearly salary, the contract included two roster

      2
       A skill guarantee ensures that a player can retain the bonus regardless of his
subsequent performance level; an injury guarantee ensures that a player can retain the
bonus even if he is subsequently injured and unable to play.

                                          -5-
bonuses—one for 2005 ($22.5 million) and one for 2006 ($7 million).3 The contract
stated that the bonus amounts would be additional consideration for the execution of
the long-term player contract, provided that (1) Vick adhered to all contract provisions
and (2) Vick was on the Falcons’ eighty-man roster on the fifth day of the 2005 and
2006 league years. The contract also gave the Falcons the discretion to guarantee the
bonuses for skill and stated that, if so guaranteed, Vick had an obligation to execute
a new contract setting forth the terms of the skill guarantee. The Falcons subsequently
exercised their right to guarantee the bonuses for skill. Vick met the roster provisions
in the contract and was accordingly paid $29.5 million.

       As set forth above, after playing just two seasons under his contract, Vick pled
guilty to federal dog fighting charges and was suspended by the League
Commissioner. The Falcons sought to recover $16.22 million from Vick, a prorated
portion of the bonuses based on the remaining years in his contract that he was unable
to perform. On behalf of the Falcons, the League filed a grievance with the Special
Master seeking a declaration that recovering the bonus money would not violate the
anti-forfeiture provisions in the CBA and settlement agreement. The Special Master
determined that the Falcons could recover bonus payments properly allocable to years
Vick had not performed. On appeal, the district court disagreed, concluding instead
that Vick’s failure to perform was irrelevant because Vick had fully earned the bonus
payments when he met the roster provisions in his contract.




      3
       A roster bonus is additional compensation contingent on a player appearing on
his team’s roster as of a specified date. Generally speaking, the existence of the
condition precedent distinguishes a roster bonus from a signing bonus, which is paid
upon the signing of a contract.

                                          -6-
                         C. The League’s Rule 60(b) Motion

       Following the district court’s ruling on the forfeiture issue, the League filed a
Rule 60(b) motion to vacate the judgment on the ground that (1) the Supreme Court’s
decision in Brown v. Pro Football, Inc., 518 U.S. 231 (1996), as well as changes in
factual circumstances, warranted a modification of the consent decree to eliminate the
district court’s oversight; and (2) the district judge’s statements in two sports-related
news articles and his practice of having ex parte meetings with counsel for the
Association created a perception that he was biased against the League.

       On the issue of bias, the district judge stated that his comments in the sports
articles did not relate to the merits of the Vick proceeding and would not lead a
reasonable person to question his impartiality. The district judge acknowledged
having had ex parte meetings with counsel for the Association, but stated that a
reasonably informed person would know that the merits of a proceeding were never
discussed, that such meetings often preceded decisions in the League’s favor, and that
the practice is the result of a long history—stemming back to the 1993 settlement—in
which both parties were invited to meet in the judge’s chambers for coffee and the
exchange of social pleasantries. Concluding that the League had not established a
reasonable perception of bias, nor any changed circumstances warranting modification
of the consent decree, the district court denied the Rule 60(b) motion.

                                     II. Discussion

       Because the League’s Rule 60(b) motion implicates the broader issues of the
district court’s continuing supervision of the settlement agreement and the propriety
of the district judge’s participation in the case, we address those arguments before
turning to the narrower forfeiture issue.




                                          -7-
                       A. Modification of the Consent Decree

       We review for abuse of discretion a district court’s denial of a Rule 60(b)
motion to amend the judgment. Keith v. Mullins, 162 F.3d 539, 541 (8th Cir. 1998).
Federal Rule of Civil Procedure 60(b)(5) provides that “[o]n motion and just terms,
the court may relieve a party . . . from a final judgment . . . [if] applying it
prospectively is no longer equitable.” A district court thus retains authority to modify
an injunction entered pursuant to a consent decree “when changed circumstances have
caused it to be unjust.” Keith, 162 F.3d at 540-41. A consent decree must also be
modified if “one or more of the obligations placed upon the parties has become
impermissible under federal law.” Rufo v. Inmates of Suffolk County Jail, 502 U.S.
367, 388 (1992); see also Gavin v. Branstad, 122 F.3d 1081, 1088 (8th Cir. 1997)
(observing that “a court that takes Rufo seriously” must consider altering a consent
decree if changed circumstances have made compliance substantially more onerous,
changed laws have made legal what the decree was designed to prevent, or if the
agreement was based on a misunderstanding of governing law). “Ordinarily,
however, modification should not be granted where a party relies upon events that
actually were anticipated at the time it entered into a decree.” Rufo, 502 U.S. at 385.4




      4
        The parties dispute whether the standard announced in Rufo is limited to
institutional reform cases or whether it applies to Rule 60(b)(5) motions in other
contexts. Compare W.L. Gore & Assocs. v. C.R. Bard, Inc., 977 F.2d 558, 562-63
(Fed. Cir. 1992) (differentiating institutional reform cases from consent decrees
settling commercial disputes), with In re Hendrix, 986 F.2d 195, 198 (7th Cir. 1993)
(observing that Rufo’s flexible standard is not limited to institutional reform cases),
and Alexis Lichine & Cie. v. Sacha A. Lichine Estate Selections, Ltd., 45 F.3d 582,
586 (1st Cir. 1995) (adopting an intermediate position wherein the court considers the
identity of the parties in its Rule 60(b)(5) analysis). Although it is unnecessary to
resolve this question in the present appeal, we note that the Supreme Court’s recent
decision in Horne v. Flores, 129 S. Ct. 2579, 2593 (2009), highlights several concerns
in institutional reform cases that may not be present in other contexts.

                                          -8-
       The League argues that, post-Brown, the district court’s oversight of the
settlement agreement is no longer permissible because it amounts to unlawful
meddling in the collective bargaining process. We disagree. The issue in Brown was
whether the players could bring an antitrust lawsuit against NFL owners after labor
negotiations had reached an impasse and the owners unilaterally implemented the
terms of their last best offer. 518 U.S. at 234. The Court held that the owners could
not be sued because the nonstatutory labor exemption to the antitrust laws protected
their conduct. Id. at 250. Brown addressed antitrust liability, whereas the question
presented here is whether a district court may maintain oversight pursuant to the terms
of an antitrust settlement.

       The rationale in Brown does not apply in the present context. In Brown, the
Court gave two primary reasons for shielding owners from antitrust liability: (1) a
concern that such liability would stifle behavior integral to the bargaining process, and
(2) a desire to defer to the congressionally sanctioned balance of power between labor
unions, owners, and the National Labor Relations Board. See id. at 236-37, 241-42.
With regard to the first reason, the Court recognized that the nonstatutory labor
exemption was necessary to avoid placing the owners in an untenable position,
observing that permitting antitrust liability in such situations would “introduce
instability and uncertainty into the collective-bargaining process, for antitrust law
often forbids or discourages the kinds of joint discussions and behavior that the
collective-bargaining process invites or requires.” Id. at 242. In this case, however,
there is no concern that the collective behavior necessary for effective bargaining will
become fodder for an antitrust lawsuit. For the last sixteen years, the League has had
an active collective bargaining relationship with the Association, and there is no
indication that the owners have been restrained by any fear of antitrust liability. The
second reason is similarly inapplicable because the parties’ agreement to the district
court’s involvement mitigates concerns about unsettling the power structure under the
labor laws.



                                          -9-
       Moreover, the law in this circuit at the time the parties entered the settlement
agreement was fully consistent with Brown. In 1989, we considered the scope of the
nonstatutory labor exemption and reached a nearly identical conclusion. See Powell,
930 F.2d at 1304. The basic dichotomy between labor law and antitrust, as well as its
application in professional sports, was recognized decades ago. See, e.g., Michael S.
Jacobs & Ralph K. Winter, Jr., Antitrust Principles and Collective Bargaining by
Athletes: Of Superstars in Peonage, 81 Yale L.J. 1 (1971). When the settlement was
approved, both the League and the Association were well aware that the existence of
a collective bargaining relationship would preclude the players’ antitrust lawsuits.
The applicability of the nonstatutory labor exemption was what caused the
Association to decertify after its second failed strike, and it is presumably what led the
League to insist on recertification and resumption of collective bargaining as part of
the settlement. Brown therefore does not constitute a change in the law requiring
modification of the settlement agreement.

       The League argues that the recertification of the players union, the resumption
of collective bargaining, and the diminishing number of original class members who
continue to play football constitute circumstances that warrant modification of the
settlement agreement. We do not agree, for the first two cannot be considered
changed circumstances because they occurred contemporaneously with the execution
of the original agreement. At the time the consent decree was entered, the League
sought the ability to terminate the settlement if the players failed to ratify a new CBA.
See White v. NFL, 836 F. Supp. 1458, 1482 (D. Minn. 1993) (finding that the
proposed amendment would have no impact on the class members because a new
collective bargaining agreement had already been reached). A basic goal of the
settlement was the resumption of the parties’ working relationship; collective
bargaining and union recertification were both essential means to that end. Similarly,
the gradual retirement of class members was anticipated in 1993, as it has been each
time the settlement agreement has been amended. When, as here, changed conditions
have been anticipated from the inception of a consent decree, they will not provide a

                                          -10-
basis for modification unless the party seeking relief has satisfied a heavy burden of
showing that “it agreed to the decree in good faith, made a reasonable effort to comply
with the decree, and should be relieved of the undertaking under Rule 60(b).” Rufo,
502 U.S. at 385. The League has made no such showing in this case, and thus the
district court did not abuse its discretion in denying the League’s Rule 60(b) motion
to end the court’s oversight.

                                      B. Recusal

       The League also contends that the district judge erred in refusing to recuse
himself because of his comments in the press and ex parte meetings with Association
representatives. We review for abuse of discretion a district court’s denial of a motion
to recuse. Am. Prairie Constr. Co. v. Hoich, 560 F.3d 780, 789 (8th Cir. 2009).
Under 28 U.S.C. § 455(a), a judge is required to recuse himself “in any proceeding in
which his impartiality might reasonably be questioned.” In analyzing whether recusal
is required, we ask “whether the judge’s impartiality might reasonably be questioned
by the average person on the street who knows all the relevant facts of a case.” Moran
v. Clarke, 296 F.3d 638, 648 (8th Cir. 2002) (quotation omitted). Section 455(a)
establishes an objective standard, and the existence of actual bias is irrelevant. Id.

       A motion to recuse, however, “is not intended to give litigants a veto power
over sitting judges, or a vehicle for obtaining a judge of their choice.” United States
v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993). We assume the impartiality of a sitting
judge and “the party seeking disqualification bears the substantial burden of proving
otherwise.” United States v. Denton, 434 F.3d 1104, 1111 (8th Cir. 2006). We have
also held that a motion to recuse will be denied if it is not timely made. See Holloway
v. United States, 960 F.2d 1348, 1355 (8th Cir. 1992). “Timeliness requires a party
to raise a claim at the earliest possible moment after obtaining knowledge of facts
demonstrating the basis for such a claim.” Fletcher v. Conoco Pipe Line Co., 323
F.3d 661, 664 (8th Cir. 2003) (quotation omitted).

                                         -11-
       The League first takes issue with two newspaper articles, both of which focused
on the district judge’s role in prompting the 1993 antitrust settlement and contributing
to a period of peace and prosperity in professional football. The first article was
published on July 10, 2005, in the Colorado Springs Gazette, and entitled “The
Peacemaker: Sports’ most stable league was forged in Judge David Doty’s
courtroom.” Along with the text, the article featured two large pictures of the district
judge in a black robe, holding a football. The story was largely historical, explaining
how the antitrust lawsuit developed, came before the district judge, and was settled
after the judge convinced League officials to compromise. The article included
statements from top NFL and Association officials, including Harold Henderson, the
NFL’s executive vice president for labor relations. The district judge shared a brief
anecdote about cajoling the League into a settlement, and he is quoted as saying that
the relationship between the top NFL and Association labor officials should be a
model for other sports leagues. Near the end of the article, the district judge is quoted
again in the following passage:

      Doty said during one good stretch of negotiations, he said jokingly to the
      attorneys for each side they did not need him any longer.

       “It was just an off-handed comment,” Doty said. “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.”

      The second article was published on January 28, 2008, in the Street & Smith’s
Sports Business Journal, and entitled “NFL’s toughest official wields a gavel, not a
whistle.” It was written to commemorate the twentieth anniversary of the district
judge’s first major ruling in professional football antitrust litigation. The article
recounted much of the same history that appeared in the Gazette story and included



                                          -12-
the district judge’s observation that then-NFL Commissioner Paul Tagliabue was “[a]
damn good lawyer.” The district judge is also quoted in two other passages:

      “[NFL Owners] pretend they’re getting beaten around. Well, they did,
      initially, but they had a position that was not legally sound.” Through
      a league spokesman, Tagliabue declined comment. Said Doty, though,
      “I think if you ask 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.”

                                        ***

      [The district judge] admits there’s a pinch of ego involved in his
      retention of the NFL matters. “I could walk away from this case,” he
      said. “But there’s one problem: I know that I know too much. They
      know, including the NFL guys, that they don’t have to re-educate me
      every time they show up here.”

       In assessing the impact of these comments, we believe the average person
would be aware of the fact that the district judge’s comments referred to rulings that
he made many years earlier and related to matters long since resolved. In these
circumstances, we do not believe that the average person would interpret the
comments as reflecting bias. The comments focused almost exclusively on the well-
documented history of the antitrust settlement and did not address the merits of the
Vick proceeding. Viewed in historical context, then, the district judge’s comments
about the League’s desire to shed itself of the district court’s oversight and his
observations regarding the owners’ fiscal success were largely statements of the
obvious. The tone of the comments, though perhaps unduly casual, was not
derogatory or disrespectful—indeed, the district judge praised the NFL leadership and
cited the labor leaders on both sides as examples for other leagues. The fact that he
has sometimes sided with the League is part of the district judge’s course and pattern
of conduct that warrants consideration in the determination of whether his impartiality
might reasonably be questioned. See Moran, 296 F.3d at 649.

                                         -13-
       The League expresses particular concern with the district judge’s statement that
he laughed at the NFL’s request that the court end its oversight, arguing that the
comment suggests he did not take the request seriously. But an informed observer
would know that the district court responded to the request with an eight-page order
that addressed the legal issues that the League raised. To the extent that the district
judge’s statements were jocular and informal, we believe the average observer would
see that as reflective of his down-to-earth approach to resolving the oft-contentious
disputes brought to him by the parties.

       We recognize that, aside from creating a perception of bias, there is a danger
that may flow from even seemingly innocuous statements to the press. Judges should
not create the impression that they covet publicity. “[I]n order to be and remain
impartial, and to be ‘perceived’ as impartial, the judge must be above the fray, not
become an advocate in it.” Mark I. Harrison & Keith Swisher, When Judges Should
be Seen, Not Heard: Extrajudicial Comments Concerning Pending Cases and the
Controversial Self-Defense Exception in the New Code of Judicial Conduct, 64
N.Y.U. Ann. Surv. Am. L. 559, 583 (2009). When judges make gratuitous public
comments on issues closely related to judicial duties, they risk giving the impression
that they have “an uncommon interest and degree of personal involvement in the
subject matter.” Cooley, 1 F.3d at 995. Self-interested behavior in submitting to press
interviews may also lead to accusations that a judge will be motivated to decide issues
in a way that prompts favorable media attention. Harrison & Swisher, supra, at 583;
see also United States v. Microsoft Corp., 253 F.3d 34, 115 (D.C. Cir. 2001)
(“Members of the public may reasonably question whether . . . a publicity-seeking
judge might consciously or subconsciously seek the publicity-maximizing outcome.”).

      Certain public comments are also specifically proscribed by Canon 3(A)(6) of
the Code of Conduct for United States Judges, which at all times relevant to this case
read as follows:



                                         -14-
      A judge should avoid public comment on the merits of a pending or
      impending action, requiring similar restraint by court personnel subject
      to the judge’s direction and control. This proscription does not extend
      to public statements made in the course of the judge’s official duties, to
      the explanation of court procedures, or to a scholarly presentation made
      for purposes of legal education.5

The Code of Conduct, which establishes aspirational rules and relies upon self-
enforcement, “does not overlap perfectly with § 455(a) [and] it is possible to violate
the Code without creating an appearance of partiality.” In re Boston’s Children First,
244 F.3d 164, 168 (1st Cir. 2001). The district judge concluded that his remarks to
the press did not violate Canon 3(A)(6), because he did not mention Michael Vick or
the Atlanta Falcons, the two parties in the underlying dispute. True enough, perhaps,
but a broader view of the Canon’s prohibition on public comment strikes us as
preferable to a narrow, technical reading of the matters included within the Canon’s
scope. Thus, although we do not believe that the articles created a reasonable
perception of bias, within the meaning of § 455(a) or Canon 3(A)(6), the district judge
would have been well advised not to opine publicly about his role in enforcing an
ongoing consent decree.

      With regard to the ex parte meetings with Association counsel, there is no
evidence that any of them involved discussion of the merits of a proceeding. To the
contrary, it appears that, as described earlier, the meetings consisted solely of a brief


      5
       As of July 1, 2009, Canon 3(A)(6) was revised to read:

      A judge should not make public comment on the merits of a matter
      pending or impending in any court. A judge should require similar
      restraint by court personnel subject to the judge’s direction and control.
      The prohibition on public comment on the merits does not extend to
      public statements made in the course of the judge’s official duties, to
      explanations of court procedures, or to scholarly presentations made for
      purposes of legal education.

                                          -15-
exchange of pleasantries in chambers when counsel arrived from out of town.
Apparently, and for no explained reason, only representatives of the Association have
attended these meetings. If there were a policy of greeting only representatives of the
Association, such differential treatment could give rise to a perception of bias. On this
record, however, we do not believe that any such inference is strong enough to require
recusal. Moreover, we are troubled by the League’s long delay in raising this issue.
Although it has been aware of this practice for a number of years, the League voiced
a complaint only after receiving an adverse decision with which it strongly disagrees.
A motion to recuse should not be withheld as a fallback position to be asserted only
after an adverse ruling. To the extent that the League relies on the ex parte meetings,
its motion to recuse is untimely.6 We conclude, therefore, that the district judge did
not abuse his discretion in denying the motion to recuse.

                                  C. The Vick Order

       Finally, the League argues that the district court erred in holding that the
Falcons could not recover a prorated portion of Vick’s roster bonuses for the years he
did not play football. “[B]ecause the content of a consent decree is generally a
product of negotiations between the parties, decrees are construed for enforcement
purposes as contracts.” Martin v. Wilks, 490 U.S. 755, 788 n.27 (1989). When, as
here, a district court’s interpretation of a consent decree is based solely on the written
document, we review the court’s interpretation de novo. United States v. Knote, 29
F.3d 1297, 1299-1300 (8th Cir. 1994). “However, even when interpreting the
meaning of a consent decree ‘as written,’ we are not to ignore the context in which the
parties were operating, nor the circumstances surrounding the order.” Id. at 1300
(citing United States v. ITT Continental Banking Co., 420 U.S. 223, 243 (1975)).




      6
        The record also suggests that the League was aware of the Gazette story when
it was published in 2005, as the article included quotes from top NFL labor officials.

                                          -16-
“We therefore give a large measure of deference to the interpretation of the district
court that actually entered the decree.” Id.

       The parties agree that interpretation of the settlement agreement is governed by
New York law. The relevant language is found in Article XIV, Section 9(c) of the
CBA, which states: “[n]o forfeitures permitted (current and future contracts) for
signing bonus allocations for years already performed, or for other salary escalators
or performance bonuses already earned.” In an earlier decision that the League did
not appeal, the district court determined that Section 9(c) creates two distinct
forfeiture tests: one for “signing bonus allocations,” which may not be forfeited for
years already performed; and another for “other salary escalators or performance
bonuses,” which may not be forfeited if they have already been earned. See White v.
NFL (In re Ashley Lelie), No. 4-92-906, 2007 WL 939560 (D. Minn. 2007). The
court further held that only the years-performed test turned on whether a player had
played football in the relevant years. The already-earned test, in contrast, was met by
the satisfaction of any conditions precedent other than performance. The distinction
is significant, because it means that bonus money classified as a “signing bonus
allocation” may be forfeited if a player does not perform under his contract, whereas
a team cannot recoup money that falls into the other categories.

       Both parties recognize that under this rubric, the relevant question is whether
Vick’s roster bonuses should be categorized as “signing bonus allocations,” subject
to the years-performed test, or “other salary escalators or performance bonuses,”
subject to the already-earned test. The Association argues that, whatever a roster
bonus is, it is not a signing bonus allocation because the terms “roster bonus” and
“signing bonus” are commonly understood to refer to two distinct payment
arrangements. Logically, therefore, a roster bonus must fall into one of the two
categories of compensation subject to the already-earned test. Since Vick satisfied the
preconditions of making the eighty-man roster in 2005 and 2006, the Association
contends that the money was fully earned.

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       The League argues, however, that the roster bonuses were actually signing
bonus allocations because certain rules governing the salary cap and minimum player
salary (1) define the term “signing bonuses” to include roster bonuses in certain
circumstances and (2) address a team’s choice to convert non-guaranteed
compensation into a signing bonus allocation. Specifically, Article XXIV, Section
7(b)(iv) states that “[f]or purposes of determining Team Salary under the foregoing,
the term ‘signing bonus’ shall include . . . any roster bonus or Paragraph 5 Salary that
the Club had the right to guarantee for skill, when the Club subsequently exercises the
right to guarantee such bonus or Paragraph 5 Salary for skill.” Article XXXVIII-A,
Section 11 also contains an oblique reference to “convert[ing] non-guaranteed
compensation to a signing bonus allocation.” Reading the two provisions together,
the League argues that a roster bonus is converted into a signing bonus allocation
when it is guaranteed for skill. Both of Vick’s roster bonuses included an option for
the Falcons to guarantee the bonuses for skill, which the team properly exercised. The
League argues that once that occurred, the money became a signing bonus allocation,
subject to forfeiture for years not performed. The Special Master accepted this
characterization and concluded that the Falcons could recover a prorated portion of
Vick’s bonuses.

        The League contends that the district court’s contrary decision violated
important rules of contract construction, in that it failed to use the language on the
salary cap and minimum player salary to interpret the forfeiture provision. See 11
Samuel Williston, Treatise on the Law of Contracts § 32:6 (Richard A. Lord, ed.,
Supp. 2007) (“Generally, a word used by the parties in one sense will be given the
same meaning throughout the contract in the absence of countervailing reasons.”);
Reda v. Eastman Kodak Co., 233 A.D.2d 914, 915 (N.Y. App. Div. 1996) (noting that
a court must make a reasonable effort to harmonize all of the terms in a contract). But
this is not a case where a word or phrase has a straightforward meaning in one context
that can be directly applied in another. Section 7(b)(iv), on which the League
primarily relies, states that its equation of a roster bonus with a signing bonus is “[f]or

                                           -18-
purposes of determining Team Salary,” and it does not use the phrase “signing bonus
allocation.” Conversely, the provision on converting non-guaranteed compensation
to a signing bonus allocation does not mention roster bonuses. The League’s
argument amalgamates the two statements to create a third, implicit rule that it applies
to Section 9(c). It is not clear that Section 9(c) was drafted with such an interpretation
in mind.

       Faced with a forfeiture provision that is ambiguous at best, the district court
concluded that the League’s interpretation was the least logical of the two. As the
League would have it, the forfeitability of Vick’s bonuses turns on whether the
Falcons guaranteed the bonuses for skill. That distinction makes little sense in the
context of forfeiture. Guaranteeing a bonus for skill simply means that a player can
keep the money no matter how poor his performance. Such a guarantee is clearly
germane to regulating team salary because it distinguishes money that is committed
to a player from money that is only tentatively slated for distribution. But there is no
reason to require forfeiture because a bonus has been guaranteed for skill. Further, the
district court correctly observed that the League’s position was contrary to the prior,
unappealed holding in Lelie, in which the court refused to use the salary cap and
minimum player salary rules to interpret Section 9(c).

       Affording the district court a measure of deference as the court that entered the
consent decree and has overseen each of the subsequent amendments, we conclude
that it properly rejected the League’s argument that Vick’s roster bonuses were
signing bonus allocations subject to the years-performed test. Accordingly, the
district court did not err in determining that the bonuses were earned when Vick met
the roster provisions in his contract, and thus not subject to forfeiture.

      The judgment is affirmed.
                      ______________________________



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