I’ve spent much of the last week in transit, as my job requires a lot of travel all over the country. Some of the pictures and posts you’ve seen since the beginning of the season have been a byproduct of little side jaunts taken at the end of business trips or cashed in frequent flyer miles. It’s allowed me to visit a lot of the parks I’ve wanted to see fairly cheaply, though the downside is that it has severely reduced my attendance at A’s home games.
Another byproduct of near-constant travel is that I can’t get into a good writing rhythm. I’m already a rather deliberate writer, and I’m envious of the pros who can toss out 500 words constructed in cogent manner in only 15 minutes. Instead I’ve preferred to shift my writing to ever longer pieces, 1000-1500 words, eliminating many of the peripheral “busy” posts that I used to do.
Yet when the San Jose-vs.-MLB lawsuit was filed on Tuesday, I was left at a loss as to how I was going to cover it. While I get a lot of advice from lawyers and legal experts, I still went through the week uncomfortable about touching the legal issue with any real depth. I wasn’t sure I could do it justice (pun intended). Instead I sat back and read all of the great writing by many lawyers-turned/cum-baseball writers like Jason Wojciechowski, Wendy Thurm, and Craig Calcaterra. ESPN legal analyst Lester Munson covered the lawsuit in the broadest manner possible, but the effect of his piece was greater than most because of the wide audience. And we have plenty of lawyers who read and comment on this site. Judging from the last post, they’ve been waiting for this moment for a long time. I’m glad that they may have a chance to sink their teeth into something juicy like this. As for me, I’m glad that at long last the A’s plight is getting the attention it deserves (and San Jose to a lesser extent). (While I was in Phoenix on Thursday, the local ESPN affiliate did a wide-ranging interview with Tim Kurkjian, and the A’s/San Jose/Sewergate were one of the main topics!)
However, let’s be clear about what we should expect from this potential circus. While many can’t agree on what the outcome will be, let’s understand what’s really at stake.
1. San Jose isn’t really trying to overturn baseball’s antitrust exemption.
Attorney Joe Cotchett’s initial bluster aside, San Jose would be perfectly fine with territorial rights being modified, their basic structure left intact. That could mean sharing Santa Clara County or the Bay Area at large, or something in between. As long as they have the right to host the A’s, they’d be fine with territorial rights maintaining monopolies (or duopolies as the case may be) here and elsewhere.
2. San Jose didn’t decide to do this on a whim.
Mayor Chuck Reed told Lew Wolff last week that the City was planning to sue baseball. Councilman Sam Liccardo had been talking up the lawsuit threat since spring 2012. From what I hear Cotchett has been involved for nearly as long. What they’ve been doing during that time is strategizing the particulars. What they came up with is arguably weak from the standpoint of trying to overturn AE, but if the goal is shake up baseball, there’s a chance it could work. SewerGate became a most serendipitous event PR-wise – as serendipitous as rising floods of sewage can be.
3. MLB is not concerned… yet.
MLB knows San Jose’s strategy, and they will certainly push hard to get the case thrown out for lack of standing. If they succeed, we go back to the status quo and San Jose is at the mercy of baseball. That doesn’t mean that San Jose is done, it just means the City can’t force the issue. All parties, including the A’s, know this. The important thing for MLB is that San Jose remains an option, however slight, because if the only option is Oakland and a scramble for extremely limited public funds, the option is poor. Of course, the City could decide at that point that it would give up the seemingly quixotic quest for a MLB franchise. Knowing how the current mayor and leading mayoral candidates operate, that’s highly unlikely. The lawsuit is costing them nothing and giving the City a ton of press and awareness. None of it is bad except that it annoys Bud Selig, who is supposedly in his lame duck period anyway.
On the other hand, if the federal judge finds that the City does have standing, then MLB has to decide what it’s willing to risk during the pre-trial discovery phase, when pertinent documents are exchanged between the two sides. As we saw in the Stand for San Jose case, one side made the blunder of providing privileged information, which the opposing side tried to use in its case. S4SJ’s attorneys, who didn’t disclose or return the confidential docs until they were caught, then were dressed down by two separate judges and nearly thrown off the case. The Lodge has demonstrated in the past that they are very fearful of any releases of team or league financial data, forced or leaked. I wouldn’t expect them to fold like cheap tents, but if enough pressure is applied, the pendulum could swing in the City’s direction as the owners simply prefer the quickest exit to the fiasco. The quick exit won’t come cheap or easy because the issue is complex, as Selig has said (but never properly articulated).
MLB’s lawyers will argue that there is no contract, hence no standing. The City’s lawyers will argue that there could’ve been a contract if MLB hadn’t dillydallied. It’s not mentioned in the lawsuit, but they could easily point to…
4. The Earthquakes
Lew Wolff and San Jose have a contract in place to build a stadium. In San Jose. On land sold by the City to Lew Wolff that started with an option. While the stadium has been delayed due to financing and general economic problems, it’s getting done. Without tortious interference – the real issue in this case. The bar for some antitrust complaints may be lower in California than the federal standard, thanks to the Cartwright Act. Whether this passes muster is up for a judge to decide.
5. The A’s are a defendant
In suing MLB, San Jose is suing all 30 member clubs in the process. So even though Lew Wolff wants to move the A’s to San Jose, he isn’t joining the lawsuit. Wolff’s public statement indicates, yet again, that he doesn’t want any part of the legal process, fiddle-dee-dee. And it sort of makes sense given that teams are bound by the MLB Constitution not to sue baseball or each other. Except that…
6. MLB’s Constitution expired?
According to Cotchett, the last Major League Constitution expired at the end of 2012. Baseball hasn’t posted a new one, so it appears that they aren’t operating with one. It sounds crazy to think that baseball could operate without a Constitution for even a brief period, as the document lays out all manner of league and team business, in conjunction with the CBA. The most recent version dates back to 2005, as part of the Expos’ move contraction-and-expansion to DC. It outlines everything from banal matters such as the timing of the owners meetings to how the leagues and divisions are constructed, and pertinent to our ongoing discussion, club operating territories. You’d think that the document would at least be amended to include the Astros’ switch to the American League West. Right?
Then again, if the league is operating without a Constitution, does it mean that there’s a loophole? If there is no binding Constitution then are territories no longer assigned? I doubt it, there’s too much at stake. The New York teams aren’t going to allow Stuart Sternberg that kind of loophole to move the Rays. Prior to the gag order, the Giants pointed to the Constitution every chance they got to back up their T-rights claims. You think they’d let the document lapse? Even if there technically isn’t a Constitution, the clubs are certainly operating within the spirit of the legacy document, which is probably good enough for a judge. The Lodge is the Lodge is the Lodge, after all. Now, if MLB intentionally let the document expire so that no one can point to the constraints of T-rights, then we’ve just devolved into anarchy within the Lodge. Which probably isn’t a bad thing.
In all likelihood, MLB does have a new Constitution and simply needs to produce it. Issue rendered moot.
7. Where does Oakland fit into all of this?
Oakland is not a party to the lawsuit. That’s just as well, since there’s a good chance San Jose will fail and the A’s will have no choice but to deal with the East Bay. The “tail-between-legs” scenario is what they’ve been hoping for all along, not that they’re presenting realistic options should that happen (remember Victory Court?). The real problem for Oakland is simple: no one’s fighting over Oakland. The clubs are fighting over San Jose, and they’d fight over San Francisco if it came to that. No one outside of the Oakland-only holdouts and Larry Baer is talking about Oakland as anything more than a short-term solution. Have you heard any other owners talk about Oakland in terms of a permanent home for the A’s? Of course not, because it isn’t even entering their minds. The only thing helping Oakland at the moment is each owner’s self-interest. In this scenario Oakland is the safety school of cities, the girl from work you go out with because she’s accessible. And that’s what really hurts. Whether the neglect is benign (Coliseum deterioration, deprioritizing the A’s) or more “sinister” (ownership motivations), Oakland’s status as a baseball town is at best tentative. If San Jose comes out of this with the A’s, no other existing teams are going to start looking to Oakland as a viable MLB home. Expansion is out of the question. The best Oakland could hope for is a minor league club of some sort, either AAA (Pacific Coast League) or high-A (California League). If Oakland is truly afforded the opportunity to keep the A’s, they’ll be ransomed like many other cities have been. MLB will bring in the consultants (just like Miami) to say that a franchise there isn’t viable without a publicly-financed stadium. Then what?
Exhibit 3 in the filing is the CSL-written economic impact report commissioned by San Jose in 2009. Normally we roll our eyes at how these things are written, because they’re designed to convince mayors and city councils, not judges. The use of such a document against baseball is more than a little ironic.
During the first press conference, Cotchett trotted out the SVLG letter and list of companies as signed-on supporters of the lawsuit. He quickly backtracked on that. The letter is Exhibit 2.
As I finished this post the plane descended over the Peninsula. I saw the lights on at AT&T Park while Candlestick Park sat silent and lonely. I wanted to get a good look at the Coliseum, but the view across the bay was obscured by a scratched up plane window and the encroaching marine layer. We landed at SJC and the plane was held on the tarmac because a computer malfunction at Southwest Airlines’ headquarters kept all other planes at their respective gates. How appropriate, I thought.