Ot: Mgolawyer perspective on #saveTheCrew lawsuit

Submitted by will on March 5th, 2018 at 7:20 PM
https://www.google.com/url?sa=t&source=web&rct=j&url=http://www.dispatc… Could any of our resident experts cast light onto whether this is likely to have any legal validity or withstand court challenges? Edit - apologies for the lackluster op.

I posted last night before falling asleep and had no time to check until tonight. I appreciate the commentary from those with insights into the dormant commerce clause.

I also take the criticism of the quality of the post to heart. This is too little too later, but trying to show good faith.

  • The Crew are an original member of the MLS, and have an avid fan base.
  • Neighbors, who are avid fans, have told me for years that moving the team was Precourt's (the new crew owner) intention from the day he purchased the crew. The theory is that it was cheaper to buy and move the crew than to pay the MLS expansion fee. This appears to be supported by contract language specifically enabling him to move to Austin.
  • This lawsuit appears to be the last Hail Mary to try and preserve the team here in Columbus. The filing of the lawsuit has been on most news reports, but with little substantive evidence of whether it is viable.

    I gather from the posts below it is unlikely to work, and while disappointing, it is not unexpected. I hope the courts decide to honor the intention of the law, but understand better why they likely will not.

Comments

jbrandimore

March 5th, 2018 at 7:28 PM ^

If it was easy to prevent team movement, all 50 states would have a law on the books and decline to publicly fund stadium projects.

The fact they don’t, tells me this isn’t easy.

Wolverine 73

March 6th, 2018 at 10:11 AM ^

The better approach would have been to include in whatever agreement the city and team signed an undertaking equivalent to what the law provides. Modell signed a lease requiring him to play all but one game a year in Cleveland Stadium, which was the hook that a court used to enjoin him from allowing the team to play elsewhere during the balance of the lease. Can not recall what the basis for requiring specific performance was, but that can be included in the lease also. That was the leverage Cleveland had to cut the deal with the league for a new team and to keep the name etc.

Now, I assume the argument would be that the Columbus team is charged with knowledge of the law, and if it agreed to accept public money and that law was on the books, the money came with those strings attached. But you would need to see the actual documents and read the actual law and do a bit of research before you could feel comfortable with your position.

Callahan

March 6th, 2018 at 3:47 PM ^

As we know, nothing is 100 percent in law, so I’m 99 percent sure this law also violates the Commerce Clause by restricting interstate trade and movement. They could maybe enforce a law requiring some money to be paid back. But an absolute ban on moving s company?

Also, without having read the law, if there isn’t some kind of time passage from the receipt of public money that would allow the team to move, then simply any tax break given at any time would ultimately render the team locked to the state. Can’t see how that’s constitutional but I look forward to hearing the argument.

The Dubliner

March 5th, 2018 at 7:43 PM ^

Even though I’m sure we’ll be negged into oblivion for saying so. I actually get more “Go Blue” from other M fans than I do flack from Buckeyes when I wear my gear around. Aside from some patchy spots in the city (and near campus), it’s a nice area overall with good schools.

MGoFunkadelic

March 5th, 2018 at 10:49 PM ^

https://www.urbandictionary.com/define.php?term=Cooler%20Pooper

TOP DEFINITION
A classless sports fan. Originating from a 2005 college football game between the the Texas Longhorns and the Ohio State Buckeyes which was overcrowded to the point that fans resorted to pooping in their coolers. Credit for the first use of the phrase "cooler pooper" goes to Brian Cook of MGoBlog.com.

Mi Sooner

March 5th, 2018 at 9:57 PM ^

I Dublin Ohio where Jack Nicklaus lives. Not a bad suburb of c-bus. There is a nice pub there that had both two hearted and Oberon on tap. And a killer veggie lasagna of which I stole the recipe. Okay the rest of the metro-C-bus area is of questionable morals.

Marysville is a hole however.

xtramelanin

March 5th, 2018 at 7:44 PM ^

large caveat: not an ohio lawyer.  however, if the only 'publicly funded' issue comes from some legislator's subjective 'below-market' cost for parking, it is specious.  it is also likely it is violation of federal and possibly state restraint of trade acts.  .02 worth.  more like .01, but there you have it. 

ChiBlueBoy

March 5th, 2018 at 8:56 PM ^

I'm a healthcare regulatory attorney, so this may not be worth the 1s and 0s it's printed on, but that was my take too, though I can imagine a set of facts where the below market cost was clearly tied to public funding, e.g., the city offered $X, but the team requested a reduction in lease fees so that it wouldn't take an immediate tax hit.

The other thing to take into account is the government's power to self-regulate. As long as the law isn't ex post facto, the courts could give the city some latitude on how it interprets its own statutes.

My guess is that the team will just wait 6 months and then trust that no one local is willing to pay the price for the team knowing that the buyer would be buying a lawsuit.

SFBlue

March 5th, 2018 at 7:45 PM ^

Hmmm, the success of this suit would appear to rise or fall based on the validity of the Ohio law to a challenge to its constitutionality, based on the Commerce Clause. Not my area of law. But the dudes in this article are skeptical:

 

https://www.reuters.com/article/us-ohio-lawsuit-soccer/ohio-plan-to-sue…

 

The law gives the city some type of right of first refusal. It's not an outright restriction. 

It's never been tested, that is the bottom line, and I think the Ohio AG has some balls for taking a run at it by suing the Crew to test the law. 

ChiBlueBoy

March 5th, 2018 at 9:03 PM ^

I'm a bit confused by the article--I think it misinterprets what the "experts" are saying, or they aren't explaining it well. The Commerce Clause has been interpreted broadly to permit the Federal government to pass laws involving commerce (which is everything). That doesn't mean that local governments can't also pass laws that have an impact on commerce (e.g., a state regulating insurance, credit cards, what cars can be sold, etc.). Here, yes, there are interstate implications, but this is involving the lease of land--hard to get more local.

Are there constitutional issues--absolutely (e.g., right to contract). But I think, ultimately, it's just not practical--too many ways to just pack up and leave.

Again--I'm hardly the expert here, though.

Jack Be Nimble

March 5th, 2018 at 9:31 PM ^

I think the article is referring to what is called the Dormant Commerce Clause. The Commerce Clause of the federal constitution has been interpreted to do two things.

1) It gives the federal government the power to regulate commerce between the states. This is simply a grant of power to the federal government and has nothing to do with state governments.

2) Courts have also, somewhat controversially, interpreted the Commerce Clause to function as an automatic restriction on state regulatory actions that privilege in-state interests over out-of-state competitors. This serves to invalidate state laws without any action from the federal government at all. (I say 'controversially' because some judges really don't think the words of the clause should be understood this way, but the Dormant Commerce Clause goes back over 200 years now so I don't think there is any chance that it is going away.)

SFBlue

March 5th, 2018 at 9:34 PM ^

Dormant commerce clause. I think the issue is that states cannot discriminate against out of state commerce, or pass laws that favor their own interests and burden out of state commerce (there is an exception for minimal burdens). Restrictions on moving frachises may implicate out of state commerce. There is a balancing test, and the law is not totally settled. 

I agree what the experts in the article say do not get you all the way there. I don't think that there is a federal scheme governing professional sports franchises, such that there is conflict or preemption. That is what one of these dudes implies. But maybe I am missing something. 

Humen

March 6th, 2018 at 12:38 AM ^

I imagine the quoted legal experts in the article feel frustrated that the author didn’t allow them to explain more fully.

(Not my area of law either but): The Ohio law here likely runs afoul of the dormant commerce clause because it attempts to restrict interstate commerce. That likely makes it unconstitutional.

It doesn’t make sense from a business perspective to force them to stick around (as the article says). I think the article falls a bit short in that respect if it is true that the AG has political motivations. In that case, he is still likely to lose, but sound business logic is the wrong tool to use to predict his actions.

NRK

March 6th, 2018 at 12:30 PM ^

The law itself is very basic:

9.67 Restrictions on owner of professional sports team that uses a tax-supported facility.

No owner of a professional sports team that uses a tax-supported facility for most of its home games and receives financial assistance from the state or a political subdivision thereof shall cease playing most of its home games at the facility and begin playing most of its home games elsewhere unless the owner either:

(A) Enters into an agreement with the political subdivision permitting the team to play most of its home games elsewhere;

(B) Gives the political subdivision in which the facility is located not less than six months' advance notice of the owner's intention to cease playing most of its home games at the facility and, during the six months after such notice, gives the political subdivision or any individual or group of individuals who reside in the area the opportunity to purchase the team.

Link

As others have stated: not my area of legal specialization, but doubt this lawsuit has much of a chance.

ChiBlueBoy

March 6th, 2018 at 2:19 PM ^

If I'm the Crew, I send in notice today of our intention to move. I would then offer the team for sale for more than any sane person would pay.

This is a terribly worded statute. No fair market value requirement, or even "on commercially reasonable terms" modifier. No statement that the team actually has to move out after 6 months. If I'm the DA, I'm not pursuing this based on that statute, but I don't get paid the big bucks like they do.

NRK

March 6th, 2018 at 3:25 PM ^

I didn't have the time to spend searching for it, but I'm sure there's some random provision somewhere else in the code that has a civil monetary penalty for violating various sections of the code that don't have any other penalties attached to them, and that would be the end of it.

 

I have to imagine this is a pure political filing knowing the chances of this thing winning are slim to none.

 

J.

March 5th, 2018 at 8:06 PM ^

As an Austin resident, I am wholly in favor of this lawsuit.  I have no interest in subsidizing professional sports -- especially my least favorite sport of all.

Don't mess with Texas, Columbus.  Keep your Crew.

Not a lawyer, and I didn't even look, but I promise you that this is nothing but an attempt to extort a slightly larger exit fee from the Crew.  Seattle / Washington State did the same thing regarding the Sonics' move.  You can see how well that worked.

As long as people foolishly continue to vote to spend public money on facilities for professional sports, this will continue.  There's too much money involved for a lawsuit to be effective.

J.

March 5th, 2018 at 9:26 PM ^

I'd write the same post, except for the dig on soccer, if they wanted to move an MLB team, and I love baseball.  I would have voted against the subsidy for the minor league stadium if I'd lived here then.  I voted against the Key Arena plans when I lived in Seattle.  It is a gigantic redistribution of funs from the public to a limited number of individuals who are least in need of it -- the owners of professional sports teams.

UofMfanINcolumbus

March 5th, 2018 at 8:27 PM ^

As somebody who lives in Columbus (captian obvious with the user name) only reason I care about them leaving is because Mapfre Stadium host Rock On The Range. Other than that, I couldn't give a shit if they leave or stay.

SwordDancer710

March 5th, 2018 at 8:44 PM ^

Until there's a complaint filed, it's hard to say. They don't link the 1996 law, so it's not clear whether it would apply here. As described in the article, if this law puts restrictions on timing and sale of sports franchises, then a lawsuit of the Crew could be successful if the facts alleged in the article are true. I find that unlikely since jounalists tend to leave out the boring minutiae that prove crucial in an actual lawsuit.

More likely, the Crew are going to either settle with Columbus out of court or follow the law and, finding no buyers, move to Austin.

Milk

March 5th, 2018 at 9:10 PM ^

I'm amazed that you think anybody on this board would care enough about Ohio professional soccer to write an intelligent reply to this.  

BrendanGoBlue

March 5th, 2018 at 9:17 PM ^

I get that a lot of people hate soccer, but soccer fans in the Ohio-Indiana-Michigan area only have Columbus or Chicago. Columbus has become a very successful club over the years. They are one of the oldest soccer clubs in America. Mapfre stadium was the first stadium in the U.S. dedicated to soccer. I get that some of you couldn’t care less, but try to understand. It would be like the Red Wings moving to Miami, or the Tigers moving to New Orleans.