MLB asserts antitrust exemption in filing motion to dismiss San Jose lawsuit

MLB filed a motion to dismiss San Jose’s antitrust lawsuit today. The 32-page filing claims that the City’s only agreement with the A’s is the land option on the Diridon ballpark site, and nothing else. This was to be expected.

Perhaps more interestingly, MLB asserted the very thing being attacked, baseball’s antitrust exemption, in the motion. It didn’t have to do this, yet it did and in the process, kind of rubbed the City’s face in it. From page 13:

To withstand a motion to dismiss, Plaintiffs must plausibly demonstrate that Defendants committed an act that is “proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.” Id. at 1159. Here, the only independently wrongful act that Plaintiffs have asserted is an antitrust violation. Since Defendants are exempt from antitrust regulation here, there is no “independently wrongful act.”

In addition, MLB says that it is no “stranger” to the relationship between the A’s and San Jose because of baseball’s covenant including the member clubs. One of the key claims is that since San Jose is not a part of MLB, only a city hoping to host a MLB club, the City has no standing. Consider what that message effectively says to all cities: The teams matter, you don’t.

The motion reads as a pretty vigorous defense of MLB’s business practices, and shows that baseball is intent on not allowing those practices to be changed. Plaintiffs will have a chance to respond before the initial hearing, and just like this filing and the initial filing, it promises to be juicy reading.

I’ll let the armchair legal experts sound off in the comments. The best ones will be added to this post.

97 thoughts on “MLB asserts antitrust exemption in filing motion to dismiss San Jose lawsuit

  1. I’am not a lawyer, and do not play one on TV, but I would say it’s on

  2. Par for the course, no? I’d like to hear MLB defend the reason it got an antitrust exemption in the first place – that it is not a business under interstate commerce laws. Pay-Rod makes $27 million a year and MLB is not a business? OK. And once again, if MLB gets San Jose’s lawsuit dismissed – the A’s problem of being unable to get a new stadium in their current territory does not go away..

  3. When I read this infuriating MLB nonsense, coupled with the A’s current losing streak, I am left asking myself why I spend 1 penny on Bud Selig’s baseball league…

  4. Should this motion to dismiss be interpreted as evidence that MLB does not support A’s to San Jose?

  5. I don’t know if I’d make that jump. They’re trying to get a suit that threatens their precious ATE thrown out. The move to San Jose doesn’t really factor into it.

  6. San Jose will still be in play regardless of the lawsuit, just as Oakland will be, they both will be untell the end, it’s called leverage Ladies & Gents.

  7. @notsellingjeans – The filing mentions the option agreement between the A’s and San Jose and passes no judgement on it. They could’ve said they disapproved and they didn’t.

  8. I didn’t read the filing, but the Mercury News article says that “[MLB’s Lawyers] point out that San Jose, which does not even have final city approval for a stadium, is unable to show the league’s conduct has harmed the city from an anti-competitive standpoint”.

    Isn’t that a direct result of the indecisiveness of Bud Selig/MLB? They told the city to hold off from putting the issue on the ballot under the pretense that they would issue a decision soon.

  9. MLB doesn’t have to change its practices re their Antitrust exemption; all they have to do (which would be in their own best interest BTW) is open up $an Jo$e for an A’s relocation! As always, just work the deal between the A’s and Giants and be done with this nonsense already!

  10. Tony D, that is plan B (or C or D). As the suit moves forward, IF it moves forward, plans B or C or D will come into play. They will approach SJ and LW and make a deal happen.
    It is what it is, once the lawsuit materialized, no way could MLB simply broker a deal or even announce any deal. They would be seen as weak, it would set future precedence (not legal). They must put up a fight, a fight that they must try hard to win else the next city will see exactly how easily they can be pushed into a deal.

    IMHO ATE has got to go to some degree (whether it’s SJ or not). I’m glad MLB brought out the ATE card and this suit will present another challenge to it.

    LW has been fairly silent on the suit. I take this to mean he is not as against it as his couple of terse statements indicated. And now I’m wondering if the lawsuit timing is more than just a lack of patience and political posturing by SJ (though that is part of it). I’m wondering if SJ found out through the green and gold grapevine that the Giants were simply making it financially impossible through their exorbitantly high $$$ demands. So, ultimately, this lawsuit and its timing might be about the A’s/SJ plan to circumvent the Giants $$$ demand. Because if this suit gets over some barriers and makes its way deeper into the legal process, the Giants position starts becoming tenuous (they begin to get closer to getting zilch) and they will start lowering their demand siginificantly. Just a hunch…..

  11. This San Jose (A’s) vs. MLB lawsuit, points to one thing. Lew Wolf and John Fisher making money. I have mentioned it before, Lew and John are not stupid, they are business men, and as such this is an investment, one they have played very, very well. They have put themselves in a position, where they reap huge profits, no matter what happens.
    If they don’t get San Jose, they simply sit at the coliseum cash those fat checks they receive from MLB (same people, that will not let them move to SJ) and ride the wave of increases in franchise value (to the bank), for a baseball team they put vary little money into, and on top of that pay almost no rent. (In baseball terms), time is on their side.
    (1). Ifwhen they get San Jose, they may not have to pay a dime (thanks to the Giants greed, and unwillingness to compromise on a settlement), even if they do, it will be well worth the money, because their franchise value will go up four fold of whatever they pay the Giants.
    I believe the Giants real fear is being boxed in, if the A’s get San Jose they will have the riches of the South Bay (silicon valley), they will still hold Oakland and the East Bay 80-85% of the fan base will remain, with the A’s, and be happy to go to SJ (especially to a shiny new ballpark). Don’t forget the A’s have strategically placed their triple A team in Sacramento (along with TV deal with CSNCA), which has historically been a strong hold for the Giants, but that’s beginning to change over the last 10-15 years, the A’s could, over time hold the majority of (casual & none-casual fans) in the South Bay, the East Bay, and a portion of Northern California (Sac/and surrounding area).
    (2). If MLB would like them to build in Oakland (primarily to cover the Giants a_ _); between what MLB and OaklandAlameda Co. will have to give them, to make that happen, it will be enormous. I know many of you may not agree with this point, but if it happens in Oakland there will be a “we did not give you San Jose settlement” in the deal.
    (3) If MLB would like them to sell to a local group, (or out of towners) that would build in Oakland or the East Bay, well that group may get some assurances from MLB if they build in the A’s current territory, but they will not get the sweetheart deal in any negations to become owners, that Lew, and John are sure to get, as it will be stipulated with any new buyers, don’t even bring up the idea of SJ.
    (4). If MLB would like to move the team out of California, Wolff and Fisher simply wait 10-15 years for Portland, San Antonito, or even Montreal (believe it or not), to get their act together, and cash out big time, while twiddling their thumbs waiting for time to go by, as they continue to, not invest much in their own product, yet ride the gravy train.
    The very fact that Lew is pushing the San Jose issue will get him paid, it’s no wonder why Lew seems to take all this crap from MLB/Giants laying down, if he is patient enough he may get, what he really wants (San Jose), but if not he will still get (straight cash homie) paid, he is not being a good soldier for no reason at all.

  12. If MLB were actually opposed to the A’s moving to San Jose, this whole waiting game would’ve ended years ago. A lawsuit like this is to defend business practice. Apple and Samsung are suing each other over patients big and small yet Apple will negotiate with Samsung over iPhone/iPad/iPod supply parts just as openly as they would with Sharp, Toshiba or Panasonic. Just like that, San Jose vs. MLB is just business and not an emotionally driven effort.

    MLB is in a good place. Maybe if business were spiraling like it was in the 70s & 80s, they’d have more incentive to relocate the Athletics, but as things are now MLBs fate is more tied in defending the ATE than it is relocating the A’s to San Jose.

  13. @ML — I agree with you, the motion is bold. It asserts the A/T exemption up front, as well-settled law. At the end, the motion succinctly adds on the standing and A/T injury arguments, as alternatives the judge can use to dump the lawsuit without wading into the merits of the exemption. I won’t be surprised to see the judge take that route. The Keker firm has done an excellent job arguing those issues. But mlb’s lawyers could’ve asserted those arguments up front, and they deliberately chose not to. mlb is saying, or at least pretending, that it’s not afraid to litigate over the big issue. Ballsy.

    The passage you quoted, ML, concerns the primary state-law claim for relief. As I’ve noted before, San Jose’s complaint somewhat oddly asserts Calif. law claims before it gets around to asserting federal A/T claims. In that respect, it’s exactly the converse of mlb’s motion. The judge could dismiss the federal claims for lack of standing and lack of A/T injury, and then decline to exercise jurisdiction over the state-law claims. In that event, San Jose would get sent packing to Santa Clara County Superior Court with the state-law claims, but the A/T issue would still be glowing because of the “independently wrongful conduct” element in the first claim for relief (interference with prospective business advantage). But if mlb’s motion is granted on A/T exemption grounds, the case will be over.

    In short, mlb’s swinging for the fences, but willing to live with a double off the wall.

  14. xoot, that maybe true, but to take your analogy another step, when you swing for the fences, you frequently strike out. In their counter, SJ should be putting their focus on the AT and just in the last 10 – 15 years how much of MLB’s business practices have drastically changed both since the initial granting of the ATE to the latest reaffirmation of it in court.

    They’ve: 1) merged into one entity (from two separate leagues to one), 2) taken their business to the internet with major profiting 3) globalized their game with non-exhibition games played in other countries, 4) drastically increased their business-to-business relations while de-emphasizing their relationship to the fans 5) become a multi-billion *business* that more and more frequently chooses to emphasize making money over the actual game itself.

    All the arguments that have existed to support the initial granting of the ATE simply no longer exist. That’s not necessarily to say any or all arguments above would be strong enough to merit legal action, but if MLB is going to come swinging with their ATE front and center, the counter needs to be re-opening the legal debate over it’s legality in the first place which may be enough to keep it from getting tossed outright.

  15. xoot – it’s doubtful that this issue is over if the Federal court does not give SJ standing with their lawsuit vs MLB. San Jose and the Cotchett lawfirm appear that they will take SJ vs MLB to the SCOTUS if they have to.

  16. So let’s assume zoots right and San Jose’s lawsuit against the ATE is thrown out: guess what? THE A’S STILL NEED A NEW BALLPARK! And Lew Wolff and the majority of owners still want the team in San Jose…the committee has still made a Bay Area recommendation re where the A’s should play (although it remains a secret). In other words, nothings changed and (with the lawsuit hypothetically dismissed) we’d still be where we were in early June. The saga would continue…

  17. Also, some fans(most of them A’s fans who prefer that the team stay in Oakland, or gnats fans) consider Wolff as a crook, etc. Actually, if Wolff were a CEO of a corporation, he’d be doing an excellant job. Wolff/Fisher bought the team in ’05 for $170 mil. – the A’s are worth way more than that now. The A’s are also profitable because of the MLB revenue sharing agreement. The team won the 2012 AL West title, and is one of the favorites to take the division this year also – with a team payroll that’s 50% or less the team payrolls of Texas, the Angels, and many other teams – very impressive.

  18. Tony D: Newsmax.com just published an article about 20 cities that could follow Detroit into bankruptcy. Oakland is on that list. Anybody see an Oakland ballpark solution happening in the next decade? The Raiders’ current pressuring of Oakland to “partner” on a football stadium very soon could expedite the whole process: In all likelihood, Oakland won’t offer the Raiders any money, in which case MLB knows the score – it has to pony up every last dime for an Oakland ballpark. If Oakland does offer the Raiders money, MLB will be at the door first thing the next day with its own hand out, waiting for its own fat check from the city.

  19. MLBs response is weak. Vincent Piazza was not a “team” and MLB at that time argued the same nonsense they are now and lost badly.

    Even Seattle in the 1970s they tried to play the same argument and when they saw it was going south like Piazza they settled it.

    Hence you have the Seattle Mariners and Tampa Bay Rays.

    Piazza proved the AE didn’t extend to franchise relocation in 1994. It’s 2013 and while MLB may have some right where it’s teams play it must be weighed first by “rule of reason” business justification.

    If the A’s or any other team make more money and get more fans by moving MLB has to look at that first.

    Right now, they are acting like an “illegal cartel” by using T-rights as justification.

    That illegal behavior will doom MLB in court as San Jose has standing because they have an agreement in place with Wolff and the A’s.

    They have ballpark designs, a plot of land, and distinct evidence of torturous interference by MLB by making them wait 4 years with no explanation.

    Kekar knows this but wants to pocket some cash in the meanwhile.

    Like Tampa Bay and Seattle, San Jose will prevail.

  20. @pjk
    It’s easy to pick on Oakland unfortunately, but Detroit is building the Redwings a new arena as we speak $440 million public funds, and whatever problems Detroit has it also has a new Tiger stadium, The Lions have a new home, and the Pistons are not doing so bad in Alburnhills, so what I would say is if it can be done in Detroit metro, it can be done in Oakland east bay.

  21. @Sid
    Seattle and Tampa= appeals and oranges, in those city’s there was no direct threat to a team in sounding metro area

  22. @sid–Piazza had standing and A/T injury. And there have been plenty of mlb A/T cases that have gone the other way.

    As to “SCOTUS”–after the Northern District judge deals with San Jose’s case, it’ll go to the 9th Circuit. That’ll take a good 2 years, minimum. (I’m intimately familiar with two recent appeals to the 9th Cir. Also, see the Barry Bonds appeal from a verdict handed down in March 2011.) Then and only then will “SCOTUS” get a petition for certiorari, which it could deny, or grant. If the Court took the case, another couple of years would go by.

    By that time, the San Jose ballpark will have been green-lighted by mlb, and the issues will either be moot or, for San Jose, not worth pursuing.

    Now that I think of it, maybe that explains why mlb is being so bold in this motion: mlb can pull the plug on San Jose’s lawsuit whenever they want to. They intend to let the A’s move, they’re just not pleased with Wolff/Fisher’s pending offer. This all just bargaining.

  23. @xoot- Piazza and SJ are quite similar as MLB blocked both from attaining a team.

    Just because Piazza is a person and SJ is municipality doesn’t make them different.

    In fact, the A/T injury to SJ is not theoretical, the tax revenue and economic impact can be proven by looking at other cities such as SF.

    @Neil- by even considering the Giants it shows directly MLB is acting like and illegal cartel and are acting in anti competitive fashion. You proved my point on the head.

  24. reK It’s easy to pick on Oakland unfortunately, but Detroit is building the Redwings a new arena

    …the state of Michigan is paying for the arena, no? The state of California can be expected to provide $0.00 in funding for an A’s ballpark.

  25. from the Detroit Free Press: LANSING — The Michigan Strategic Fund board approved issuing up to $450 million in bonds to finance construction of a $650-million project that will include a new arena for Detroit Red Wings hockey and other events, plus $200 million more to develop the 45-block area between downtown and Midtown.

  26. @Sid–read the standing and A/T injury arguments in the motion. As to standing, there is no such thing as a competitive market of large cities vying to obtain a mlb franchise. That’s a phantasm. I think it’s alleged on p. 29 of the complaint. Made me laugh when I read it the first time. Compare this: The LA Coliseum authority had standing to sue the NFL in A/T because they owned a NFL-ready stadium (and thus competed in an actual market) AND they had a contract with Al Davis committing the Raiders to play in that stadium. Those facts = A/T standing.

  27. @lakeshore,
    Respectfully, there’s a different attitude re taxes for sports stadiums east of the Rocky’s. In many an American city taxes can be raised for sports venues WITHOUT a vote of the citizenry, and many of those same citizens won’t say anything about it. On the other hand, this would NEVER happen in California. To suggest that (like Detroit apparently) Oakland will raise millions in taxes for sports stadiums, with the threat of bankruptcy hovering over their heads, is ludicrous. Heck, out of fairness, same could be said for San Jose. Hence it’s all about private financing for sports stadiums here in the Bay Area.
    @all,
    All the legal arm chairing is interesting (SCOTUS, Piazza, 9th Circuits, etc), but at the end of the day it all remains quite simple: privately financing an A’s ballpark in the Bay Area and what’s in the best interest of MLB.

  28. @xoot- not having the legal background my question for you is if the SJ lawsuit has no merit and will be thrown out of court why would someone like Cotchett spend his own time and money taking this case pro bono? What’s in it for him if it’s a hail Mary?

  29. IMO, MLB has now become careless with their long standing ATE by being brazen enough to carry it much further than what it was intended to be. The territorial issue under MLB’s ATE was designed to give franchise stability to MLB by denying automatic franchise transfers of teams from one market location to another. As an example, MLB could thus prevent any MLB franchise from just picking up and moving to another team’s market at their own whim, which would likely adversely impact the previously existing team in that market. IMO, this example is being used erroneously by MLB, under their ATE, to deny San Jose from having the A’s move to its city without their approval.

    MLB, under its request for dismissal of the San Jose lawsuit, continues to make the bogus claim that the City of San Jose is exclusively part of the Giants’ territory, and is not also part of the territory of the A’s. Therefore, San Jose has no right or authority to allow the A’s to move to their city without MLB approval.

    I’m not a lawyer, but what the lawyers for San Jose will have to show is that San Jose is in truth a bona fide part of the shared Bay Area market for both the A’s and Giants. That MLB’s granting of territorial exclusivity to the Giants to the South Bay should not have been allowed, and should have been officially voided immediately upon the Giants’ failed attempts to move to Santa Clara County.

    In truth, the Bay Area is a shared market for both the Giants and A’s. To deny the A’s from moving and building their new ballpark in a site of their own choosing within their shared Bay Area market, including San Jose, would certainly put the A’s in an ongoing competitive disadvantage with the Giants. In effect, this is putting a restraint of trade on the A’s within their legitimate market. This is well above what MLB’s ATE was originally intended to be about.

  30. BTW, reading the Twitter feed it’s interesting (to say the least) that some are equating this news as MLB saying no to an A’s move to San Jose. WTF?! Again, MLB can keep its precious ATE for all I care: just free the largest city in the Bay Area and work (i.e. deal) towards having TWO healthy MLB franchi$e$ in the Bay Area, not just one…

  31. Llpec’s right! For all intent purposes, the Bay Area IS A SHARED TERRITORY. Here in Evergreen SJ I can freely listen to 95.7 or watch a game on CSNCA. The A’s can freely advertise in the Merc and sell tickets here in the South Bay. I can go down to Eastridge Mall to buy A’s gear or cross the Alameda County line to catch a game in The O. And lastly, there are BOTH A’s and Giants fans here in the South Bay. Heck, you could extend my aforementioned thoughts to the ENTIRE BAY AREA. WE ARE A SHARED TERRITORY! The only thing the current, stupid territorial gerrymandering prevents is the A’s physically building a ballpark in downtown San Jose…THAT’S IT! All this legal ATE crap aside, hopefully MLB will work in the own best interest and free $an Jo$e for an A’s ballpark.
    (BTW, love the A’s, but the SF Giants are more then welcome to live up to the original purpose of having us in their “territory” and privately finance a MLB Giants ballpark in downtown San Jose. Until that happens…)

  32. If the Bay Area were changed to a shared territory, would the 15-mile between ballparks rule still apply?

  33. SJ’s lawsuit against MLB has appears to be stronger than xoot is claiming it is. The giants’ false SFSJ group’s recent actions show that the giants evidently are worried about the outcome of SJ vs MLB, and are attempting to weaken SJ’s case.

  34. The giants don’t “own” San Jose and the south bay. The giants mgt. has been attempting a massive con job and evidently having some success – with the public and media – that they always been the preferred team in the bay area. We A’s fans know that that is not true. Back in the LaRussa era, there were likely more A’s fans than gnats fans in the south bay, and the A’s outdrew the giants to the point where Lurie gave up on the bay area and sold the team to the Tampa Owners. The A’s were 3rd in MLB with attendence then. And when Lurie sold the team to the Tampa owners, it wasn’t a big deal locally. The giants spin doctors evidently have done a good job piling the b.s. with the local media and MLB though.

  35. @pjk Thanks, with all due respect, I know funding is coming from the state level in Detroit for the new arena. I have said it will take lot creativity for it to happen in Oakland, and that may include some arm twisting in Sacramento. Point being, there are a lot of California cities in financial trouble , including San Jose and before you come back with the “it’s going to be privately financed in SJ” I don’t think for a moment that MLB will let any stadium be totally privately financed. There will be a price to pay in Oakland, or San Jose. I know that price will be much steeper in Oakland of coerce, but it’s easy to toss out bad news on both Oakland, and San Jose.

  36. I thought the original intent of baseball’s AT laws was to prevent another league from forming in any city that has a professional or minor league team (affiliated with an MLB Club). That does give MLB a monopoly on baseball here in the US. We all know it’s interstate commerce etc, a monopoly, blah blah. MLB still as a league has the right to determine where it’s franchises are located at. Sorry SJ and Montreal. We all knew this was going to happen with MLB filing a motion to dismiss the case. If the A’s and SJ are serious about the A’s moving to SJ they need to go after baseball’s AT thru Congress. Let MLB fight two battles at once.

  37. re: MLB still as a league has the right to determine where it’s franchises are located at. Sorry SJ and Montreal.

    …and will MLB continue to choose to locate a franchise in Oakland, where all that’s available is a deteriorating, nearly-half-century-old facility, with no money or site available for a new ballpark? You might be saying, “Sorry, Oakland,” before too long, too.

  38. re: I have said it will take lot creativity for it to happen in Oakland, and that may include some arm twisting in Sacramento.

    …You really think that Jerry Brown, who wanted nothing to do with a downtown ballpark in Oakland, is going to approve a nickel of state funding for a baseball stadium in any city? The same guy who cut off at the knees the redevelopment funding that was Oakland’s only bleak hope of paying for a stadium? The A’s have needed a new ballpark for 15 years and no progress has been made in Oakland. There’s no deal, no construction underway, zip. Just a desire by some folks that the A’s “rich” owners pay the whole bill regardless of any return on investment. It’s already established that the corporate support needed to get a new stadium done around here is in the South Bay. Just ask the 49ers…

  39. Interesting question Briggs on the 15 mile radius- assume that would take HT off the list of possible (note I didn’t say viable) sites. Would it also take CC off the table?

  40. “why would someone like Cotchett spend his own time and money taking this case pro bono?”

    The publicity alone is worth a fortune. Moreover, there always is the chance that he can pitch a perfect game against the A/T exemption. Some courts, including the court in Piazza, have gone that way. In that event, Cotchett would look really good. Of course, merely surviving a motion to dismiss doesn’t result in any damage award, or a contingency fee payment.

    One of the Cotchett firm’s partners, Frank Damrell, whose name is on the caption page of the complaint, was a federal trial judge in Sacramento (E.D. Cal.) for a long time. Many of the other lawyers in the Cotchett firm are federal litigation experts. Same with Keker and his crew. Virtually every lawyer in that firm clerked for a federal judge after law school. These people know federal jurisdiction inside and out. They’re all experienced in A/T law. Frankly, I’m enjoying the unique nuances of the battle so far (the upside-down complaint that I described in my first post today, the ballsy motion to dismiss).

  41. @Mike2

    Are you serious? Congress people are bought and paid for handsomely. You really believe that Diane F, Boxer, Pelosi etc..gonna to vote to end ATE?

    The issue has to be decided by US Supreme Ct or it will stay as is.

  42. Also the giants and MLB will settle – and the A’s will know the way to San Jose – before SJ vs MLB reaches the SCOTUS – MLB’s chances of retaining the MLB ATE are poor if the case goes that far.

  43. @Tony D. Yes I agree, with you 100%
    @pjk I don’t know how it would happen, Hell at this point San Jose, and Oakland may both lose. The A’s may not even be in California in 10 years. I know the south bay is rich, but that does not preclude it from happening in Oakland, I hope it does happen in San Jose (if it can’t happen in Oakland), all I am saying is people could post bad news about Oakland ( it would defiantly be more), or San Jose. It’s just don’t think it helps. That being said I am probable being too sensitive, and I come in peace.

  44. @pjk Sorry ment to say ” I just don’t think it helps. That being said I am probable being too sensitive, and I come in peace.”

  45. @xoot – MLB will likely look to cut a deal if San Jose receives standing. If the case went to trial, Selig would look very foolish on the witness stand if he has to explain why the giants were granted their territorial rights to San Jose and why the territoral rights weren’t revoked after San Jose voters rejected the giants plan to move here.

    Also, how the giants can claim territorial rights to San Jose even though Oakland is closer to SJ and the A’s have more of a claim to SJ than the giants do. Then explaining how the A’s are intruding into the giants fanbase by moving 35 miles further away from SF? Selig’s explanations would be very humorous.

  46. not-a-lawyer guessing this case gets dismissed. The option on the Diridon space hasn’t been exercised and MLB hasn’t revoked any acquisition.

    I feel like, until the A’s sign some agreements with SJ to move and money changes hands, SJ won’t have standing.

    MLB hasn’t prevented the A’s from moving anywhere, they just haven’t given their consent.

  47. All the argument’s for MLB and the giants so far have not been convincing at all, including xoots – and they all avoid discussing the Tampa Bay owners vs MLB cases topic for some reason.

  48. FYI – the 49ers opened their new store at Valley Fair Mall today. Let’s see: the fans, the new stadium, souvenir stores, training facility, HQ, trophies, are all in the South Bay. Even the airport the team uses is there. So how is this a “Frisco” team again? Who knows what kind of South Bay corporate support the A’s already have lost to the 49ers because of Bud Selig’s cowardice?

  49. It’s a “Frisco” team because it’ll sell a shit ton more merchandise as the San Francisco 49ers than it would as the Santa Clara 49ers. The city name in many team makes is due to marketing. The Los Angeles Angels of Anaheim? Anaheim isn’t Los Angeles anymore than San Jose is San Francisco. The New York Giants and Jets wouldn’t drop the “New York” from their names even if they moved to Syracuse. Even with the A’s in Oakland, I’m positive they would’ve been a whole lot better off if Charlie Finley decided to call them the San Francisco Athletics. They definitely wouldn’t sold a lot more merchandise and stood a better chance at being embraced by the whole region like the Giants were.

  50. @daniel

    The reason why we have this mess is because of the Supreme Court. The Supreme Court will never overturn baseball’s AT exemption because no one is going to start a MLB caliber baseball league in cities that already have a MLB team. Why is it that we have seen (failed) attempts in trying to start other sports leagues (USFL, XFL, WHA, ABA) but no new MLB caliber leagues since 1919. MLB owns the product from the top to the bottom. All it takes is someone in Congress with the balls to introduce some legislation to get this rolling. If you are going to f*ck with sport league to give you the right to acquire one of their teams, you might as well have a plan B in case this lawsuit gets dismissed. The Supreme Court has clearly stated on a couple of occasions that only Congress can remove baseball’s AT.

  51. re: stood a better chance at being embraced by the whole region like the Giants were.

    …yet the San Jose Sharks and Golden State Warriors are embraced by the entire region, without “Frisco” in their names.

  52. The Raiders have also done well, before they moved to LA, I think they had 18-20 straight years of sellouts without SF in their name, but the Bay Area is a very homogenized place, if you talk to someone from southern California, they simply say I am from LA, if you talk to someone from the five boroughs they may let you know which one they are from (Brooklyn, Staten Island, Queens), but at the end of the day they are from NY. It’s not that way in the Bay Area, it I am from San Francisco, San Jose, Oakland, the Bay is very territorial. I guess because San Jose and Oakland are tired of being treated like step children…

  53. In all honesty, as much as I love Oakland and the east bay, I would have to agree that the Warriors should have kept SF, in the name when the moved over from the cow palace, I mean without SF, there would be no SJ or Oak. We sure as hell know, they will change it back to SF, if piers 30/32 work out for them.

  54. I should have said, if the Warriors where not going to use Oakland in their name, they should have kept SF. Golden State? really the Lakers, Clips, and Kings already play in the Golden State, keep SF, use Oakland, San Jose, even SF Bay Warriors, anything Bay Area Warriors. Golden State can we please change that

  55. OT RM, but any word on the A’s lease at the Coliseum? Can’t believe we’re almost at mid August and (technically) the A’s have no where to play for the 2014 season.

  56. So what city is looking like a more likely destination? Does this change anything?

  57. @cbs,
    No, this lawsuit (and attempts to get it dismissed) doesn’t change anything. Based on corporate/political support, the A’s wanting to relocate and the need to privately finance a ballpark, San Jose should be the obvious destination. Just need to deal with this ridiculous territorial rights crap of the Giants…

  58. @Tony D. funny some people (not on this site), really think this SJ suit changes things, not one thing has changed, I love how people think SJ will never get the A’s because of this (Bay Area media), real misinformed. It really bothers me, a lot of these people would rather see the A’s leave the Bay Area then go to the south bay, its crazy

  59. “”I love how people think SJ will never get the A’s because of this (Bay Area media), real misinformed. It really bothers me, a lot of these people would rather see the A’s leave the Bay Area then go to the south bay, its crazy””
    Agree completely on the media angle. I’m not sure if it has been this way always or this is a development from only a decade or two ago, however, the media is filtered through their corporate interests. Now add to that the lowest of media is found in the sports department and it is bad mix to have good reporting on the issue.

    As far as some people preferring to see the A’s leave if they don’t stay in Oakland, that’s to be expected. Their stance is based on civic pride emotion/passion (and some adversarial geography) not a ‘what’s best for the A’s’. I don’t know if I can blame anyone for their deep seeded civic pride (it’s understandable isn’t it?). Yet I do take issue with those who let their emotions get soooo wrapped up that even a modicum of good sense is impossible (applicable to our electorate in general).
    Look, it’s relatively obvious that any owner of the A’s is not going to spend half a billion of their own money to build a stadium in Oakland plus add in another 60 to 100 million for site prep costs. Even if Oakland pays the 60 to 100 million to cover the prep costs (which few really believe they will do), what owner in his right mind is going to spend half a billion of his own money for a location that has tenuous corporate support potential, lower tier attendance totals even with competitive teams, as well as comparatively low ticket pricing. And unless Oakland is going to kick in $$$ (unlikely) AND MLB corporate is going kick in $$$ (unlikely), AND then a workable site is found that actually won’t break the bank to prep (unlikely), again this has been a dog and pony show. It’s been a farce. Whether some judge says MLB’s ATE should not apply or says it is solid as granite, whether LW sells to a purported Oakland-phile owner, whether the Giants put together the greatest subterfuge plan in corporate history (S4SF), whether BS says “sorry, SJ is off limits, period”, the Oakland A’s are not going to be playing baseball in a new stadium in Oakland. The environment, business dynamics, past is prologue, and a calculator CLEARLY indicate this.

  60. actually seen people here in the local “sports media” who said they’d be sad to see the a’s move into a new park considering they’re going to miss the underdog/overchiever status they’ve gotten over the past decade plus. also read many a’s fans who think the same that if the a’s move into a brand new park in sj that they’d lose that underdog mentality and will be just another “corporate team” in mlb and in sports general.

    really? you mean you wouldn’t want the a’s to be better off financiallly where they can actually keep their star players and be a team with the support of silicon valley that can actually compete on somewhat of a level playing field with the top spenders in mlb. no doubt beane and ask to the guys who run the rays whether they’d give up the role of underdog where they have very little margin of error or a team with a new park that can actually have a payroll thats one of the tops in baseball, similar to what happened in min when target field opened back in 2010?

  61. I’m certainly not a lawyer, but I’ve spoken to a handful of lawyers who have handled antitrust cases, including 2 individuals who have been in litigation against MLB. So my opinions are based largely on what they have told me – in addition to my own armchair lawyering. While talk of SCOTUS hearing this issue may be fantasy, and the chances we actually get to a point where SCOTUS would hear this case are slim, there is no reason to think San Jose won’t appeal their case if it is unsuccessful at first.

    In 2007 MLB’s antitrust exemption became an issue in Leegin vs PSKS. It was argued in the Leegin case that stare decisis should always be honored, no matter how outdated previous rulings might be. The PSKS lawyers used MLB and the antitrust exemption as a prime example. In the end, SCOTUS ruled against PSKS saying that stare decisis does not need to be followed and Rule of Reason should be the determining factor in antitrust cases. You can read how the Leegin ruling might effect (I said might) MLB’s antitrust exemption here: http://wombledistributionlaw.blogspot.com/2008/02/unintended-consequences-of-leegin.html

    MLB didn’t lose their exemption with Leegin, but they may have lost the argument that it should be honored simply because of past precedent. But for all the reasons Xoot said, Judge Whyte may toss the case and not care what happened with the Leegin ruling. One lawyer told me:

    “San Jose’s case may get stronger through the appeals process. With regards to the antitrust exemption, the appellate courts would be more likely to follow Leegin and pick apart the exemption, which is less likely and probably unlikely to happen in a San Jose courtroom.”

    That somewhat bothers me, but I understand it. Leegin didn’t clearly state a new set of rules for MLB (FYI – Leegin was cited in American Needle), so it might be better to stick with what laws you already know (i.e. San Jose standing with regard to the land option) and let the appellate courts make the issue more clear, I guess.

    Asserting the antitrust exemption was certainly ballsy, but IMO, the smartest thing Keker did in the motion to dismiss is to completely ignore the Busch-Haas deal that gave the Giants exclusive rights to Santa Clara County in the first place. By definition that deal was horizontal; and horizontal agreements are per se illegal and an antitrust violation. When George Steinbrenner gave MLB the middle finger in 1998 and sued them, part of the claim was MLB was making horizontal agreements. MLB settled. When Michael Buchman’s puppet Fernanda Garber sued MLB to overturn MLB’s TV blackout rules, much of the suit was tossed out – the claims of horizontal agreements by MLB leading to price fixing were not. That was a big reason the suit was allowed to move forward. It was smart to not even go there, let that sleeping dog lie until Judge Whyte asks for a response to the deal in court – if he does. MLB’s way of doing business is certainly profitable, but worthy of scrutiny void of protection when cases like this arise.

    Xoot said: “Now that I think of it, maybe that explains why mlb is being so bold in this motion: mlb can pull the plug on San Jose’s lawsuit whenever they want to.”

    I agree with this. But given all the factors at play, there is no reason for San Jose not to appeal its case if and when it gets tossed. This makes me think of two questions:

    1)Now that MLB has forcefully asserted its antitrust exemption, does MLB feel comfortable defending it while San Jose exhausts its appeals in a post Leegin era?

    2)Is MLB taking the hard stand because they already know what the outcome of the A’s will be?

    It would have been foolish to think MLB was going to just roll over like a dog when San Jose sued. But I don’t think it’s crazy to think that San Jose will keep its case going should it be tossed. I just don’t see why MLB would assert and possibly risk its exemption over this issue. As has been said in previous posts, the appeals process could drag out for years. Still, because of SCOTUS uncertainty, and my belief San Jose won’t let the case die, I’m more convinced than ever the A’s are moving to San Jose. I’m just not sure it happens by 2018.

  62. “As far as some people preferring to see the A’s leave if they don’t stay in Oakland, that’s to be expected. Their stance is based on civic pride emotion/passion (and some adversarial geography) not a ‘what’s best for the A’s’. I don’t know if I can blame anyone for their deep seeded civic pride (it’s understandable isn’t it?).”

    Civic pride makes a hell of a lot more sense than pride in some random private profit-maximizing corporation with a constantly changing roster of players that moves to whatever city can make it the most money.

  63. re: Civic pride makes a hell of a lot more sense than pride in some random private profit-maximizing corporation with a constantly changing roster of players that moves to whatever city can make it the most money.

    …The standard way MLB gets ballparks built is through public funding. This is not going to happen in Oakland. Are you advocating the “Build in Oakland with your own money whether or not you lose money” approach? We can demonize the rich all we want, but we can’t make them build a ballpark where they’re not going to make their money back.

  64. @pjk – No I’m not demanding that, but I am justifying my moving on when the A’s are no longer my hometown team. I have other things in my life and my allegiance to the A’s is not unconditional. I am not that much of a sucker.

  65. @muppet–good comment. But on Leegin, I think you overlooked an important point. In Leegin, the Supreme Court REDUCED A/T protection by holding that certain types of vertical price fixing are no long per se violations of the Sherman Act. Throughout the country, various states’ AGs have declared that they intend to continue to go after vertical price fixing under their states’ A/T laws. They’re outraged at the US Supreme Court’s laissez-faire approach to A/T law. (Of course, it’s the SCt’s MAJORITY that’s driving the bus.)

    I see no reason to assume that the reactionaries on the high court would be inclined to make a change in A/T law that increases its reach. Additionally, I think it’s quite clear that the majority on that Court observe stare decisis when they want to do so, and bypass it when they don’t.

  66. @Tim
    Thanks man, I really respect where you’re coming from. I guess I am a sucker, as long as it’s in the Bay Area.

  67. What if MLB abandoned the franchise business model and all teams were techincally company-owned. From a legal standpoint, wouldn’t that get them off the hook for operating as a monopoly? As things are now, the owners basically serve as vice presidents or a board and Selig is the CEO or Chairman.

  68. xoot, one thing to consider is that by the time this thing could potentially reach a SCOTUS review, the make up of the court could be different. So using it to predict how they’ll swing today for tomorrow isn’t a very good indicator. The primary thing would be getting a lower court to bite on it.

  69. Briggs, I don’t think that changes anything. They’re still conspire together on decisions. How they view themselves isn’t as important as how they work together.

  70. Also, it may help to focus the issues. The third-party apparel and tv cases, imo, are way beyond the exemption pale. I don’t think it was ever reasonable to try to stretch mlb’s A/T exemption out there. Instead, the basic questions, I think, are these: Should mlb’s A/T exemption continue in any form? If so, what’s its scope? Specifically, should it continue to immunize the horizontal market-division agreements mlb franchises enter into?

  71. @dmoas–by the time the San Jose case could get to the US SCt, some of the current justices definitely would be gone. Obama’s successor might be shaping things then. wtf is that going to be? I just wanted to put Leegin in perspective.

    In any event, I thing it’s very likely the San Jose case will be moot long before the US SCt hears about it.

  72. @domas: a private company choosing where it wants to place its compnay-owned location isn’t conspiring, it’s strategic planning. However, individually owned franchises networking to close off regions to promote overall revenue is conspiring. Once upon a time, the courts saw baseball as an industry that the AL & NL competed in, and further both major leagues consisted of privately owned franchises that competed amongst each other. As we know, the major leagues merged and are now MLB, a company that governs the operations of all teams. It’s a monopoly when MLB says this private franchise can’t move to San Jose because it violates MLB policy determining who can move where/when. However, if all teams are company owned, they’re controlling the market, they’re just controlling their assets.

  73. It definitely appears that MLB does not want the San Jose lawsuit against them to go on ahead. That’s why MLB is putting all its efforts into having this lawsuit dismissed. If the ruling is in favor of the standing of San Jose, MLB will most certainly reach an out of court settlement with San Jose by giving approval of the A’s to move to their city. MLB does not want to put their most sacred ATE at one bit of risk, even if confident that their ATE will be sustained. At the very least, MLB doesn’t want their insiders Lodge exposed with their selfish ways of conducting business.

    At this point, San Jose has nothing to lose with its ongoing legal fight for the A’s, even if it has to be taken up to an Appeals Court. On the other hand, MLB has more to lose the longer the case remains unsettled in the courts. It won’t take much for the MLB Lodge to throw under the bus one of their most favored members(The Giants), in order to save their own self interests.

    With the San Jose lawsuit against MLB now in the works, the A’s will be heading for San Jose much sooner now than otherwise. Also, it gives A’s fans more hope that their team would not be ultimately forced to move permanently from the Bay Area, a scenario for which the Giants would most prefer.

  74. @briggs–one of the interesting things about the motion to dismiss is the way the A/T exemption argument ignores distinctions between section 1 and section 2 of the Sherman Act. Whether we’re talking section 1 horizontal market division or section 2 monopolization–it’s all immunized, the motion asserts. That’s another bold, clever stroke.

    For those of you who love to cite Piazza, be sure to read footnote 9, on page 9, of the motion. I’ll be interested to see how the Cotchett firm responds.

  75. San Jose and the Cotchett law firm look determined about winning SJ vs MLB (evidently SJ mayor Reed was p.o.’ed by Selig’s snubbing the mayor of the 10th largest city) If they need take their case to the SCOTUS – one would believe it would be less than four years. It is doubtful that the SCOTUS would change any of its members within four years. As llpec and dmoas have suggested – once the case receives standing, Selig will very likely seek to cut a deal with SJ and avoid a trial.

  76. Briggs said:

    “What if MLB abandoned the franchise business model and all teams were techincally company-owned. From a legal standpoint, wouldn’t that get them off the hook for operating as a monopoly? As things are now, the owners basically serve as vice presidents or a board and Selig is the CEO or Chairman.”

    – That’s what the NFL tried to do with the American Needle case a few years back. There was a small Wisconsin(?)company that got pushed aside when the exclusive Reebok deal came along. Eventually the case made it to the Supreme Court with the NFL claiming just what you posted, that they were one company with 32 shareholders. All three other major leagues supported this, as the ramifications would’ve been huge (throw out all the CBAs, for example. Collusion? Why no, we’re just 30 shareholders discussing the salary structure for our employees.) The Supremes shot it down.

  77. Briggs, I was assuming in your scenario there’s still an agreement being made that prevents the A’s to go to SJ in your scenario.

  78. “It is doubtful that the SCOTUS would change any of its members within four years.”

    I’m sure Justices Scalia, Breyer and, especially, Ginsburg appreciate your optimism about their longevity.

  79. Keep in mind guys if MLB were to win this case then all other leagues NBA, NHL, NFL would then be able to control franchise relocation with “illegal cartel” like behavior that would set the wrong precedent.

    Other leagues would establish T-rights immediately and that is not good at all.

    The NFL, NBA, and NHL have tried for years to get A/T exemptions and lost badly. Especially American Needle vs. NFL where the NFL went all the way only lose in the SCOTUS in horrendous 9-0 fashion.

    This case will get heard, the A/T exemption was given in 1922 when half the current business laws were not in affect yet or even created for that matter.

    For the future of sports business San Jose must win or it gives the leagues more power to act like illegal cartels.

  80. @Sid
    Yeah, I really don’t know anything about the law, but this case seems to have the potential to set a precedent for other leagues, I mean this could go far beyond the three cities, two team fight in the Bay Area.

  81. @sid–the US Supreme Court reviewed the A/T exemption in 1972, in Flood v. Kuhn. In that decision the Court repudiated some of the old rationale for the exemption, recognized that the sport (and its business side) had changed over the years, but upheld the exemption, affirming its original 1922 decision “so far as that decision determines that Congress had no intention of including the business of baseball within the scope of the federal antitrust laws.” The Court thus passed the buck to Congress.

    In 1998, Congress passed The Curt Flood Act, which repealed one narrow part of the A/T exemption. After the Act, mlb players were not barred from asserting A/T lawsuits. The Act included this language: “No court shall rely on the enactment of this section as a basis for changing the application of the antitrust laws to [lawsuits concerning] “franchise expansion, location or relocation, [or] franchise ownership issues . . . ”

    Now, did Congress thus endorse a broad A/T exemption? Or just leave it as is–somewhat confused by conflicting court decisions, with more confusion to come? Hard to say. But one thing is certain: Congress did endorse some version of it.

    NFL and other pro leagues have no such A/T exemption and they almost certainly never will. That’s exactly why the LA Coliseum authority and the Raiders were able to whip the NFL in a rule of reason A/T battle back in the 80s.

  82. note: Flood v. Kuhn, was quoting and reaffirming an earlier pass-the-buck case called Toolson v. NYY. And I left some ellipses [. . . .] out of my quotation from the Act.

  83. @xoot
    Not to give you a big head, but you are “one bad mutha, Shut your mouth”

  84. Since the legalese/arm chairing had gotten out of hand here (respectfully), I’ll bring this all down to Earth (again): simply revert Santa Clara County to shared territory status, indemnify the Giants for loosing exclusivity over SCCo and allow the A’s to relocate 35 miles south to San Jose. Very, very simple. No need for Sherman Act’s, SCOTUS, Piazza, 9th Circuits, Curt Flood Act’s, Judge Judy, etc. I’ll see you guys on the next thread…

  85. Meant “has gotten,” not “had” in previous post.

  86. If MLB loses its ATE, Selig’s greatest feat will be how nearly all MLB franchise secured a new/upgraded facility during his tenure. That feat gives MLB stability over the never 30-40 years (or however long before everyone starts crying for a new ballpark). In the short term (5-10 years), the outcome of this trial effects the A’s and Rays and their respective departing/arrival cities. It’ll be interesting to see what happens to MLB with the ATE once teams are ready for the next generation of ballparks.

  87. It’ll be interesting to see what happens to MLB without their ATE once teams are ready for the next generation of ballparks.

  88. “”If MLB loses its ATE””
    IMHO that coming to fruition would be a good thing for fans of baseball (regardless of the A’s getting SJ or not). It would cause the ruling parties of baseball to revamp how they think and how they run the business of baseball. The changes may not be all good, however, on the whole it would be a positive.

  89. Running away with the division just two weeks ago, the A’s will probably be in second place in a few hours. Isn’t this great.

  90. I’m not a fan of Selig, But I have no problem with the ATE as pertaining to franchise movements. MLB should have the final say in where franchises move. It’s their league. I’m not sure how this distinction differs with the other major leagues, who do not have this exemption. I guess they are able to control franchise movements w/o benefit of ATE. So maybe I’m not clear on this, but I don’t want to see massive franchise movements on the whims of non-baseball type owners. Keep in mind that MLB has NOT said NO to San Jose as of yet,so it seems not to be in use just yet, although I guess they are using it in attempting to have the SJ case dismissed.

  91. MLB can’t use the threat of a San Jose relocation to prod Oakland to pony up taxpayer $$ for a new ballpark. It’s a matter of not being able to draw blood from a stone.

  92. @xoot- The reason why SCOTUS and Congress did not 100% repeal the MLB A/T exemption was because of time and the scope of the issues at hand.

    In 1972 the issue was free agency and the reserve system. SCOTUS did not want to drag the case out and examine all parts of the A/T exemption at that time.

    Instead they limited the scope to just the reserve system. SCOTUS justices have gone on record stating they “regret” not repealing the entire exemption at the time when they had the chance.

    In 1998, Congress did essentially the same thing as SCOTUS did in 1972, for the sake of time and not opening up a huge can of worms passed the Curt Flood Act to simply protect the players from possible A/T issues with the owners.

    For Congress to repeal the entire AE they would have to examine everything MLB does from a business standpoint. They did not have the time nor bandwidth to do so. Hence why they stated not to use the Curt Flood Act outside of free agency and player issues.

    San Jose, in 2013 is attacking MLB in one area and that is “franchise relocation” to their city. It is anyone’s interpretation on if the A/T exemption even extends that far. Vincent Piazza is direct evidence of why San Jose has very good standing.

    The Florida Supreme Court ruled in Piazza’s favor but stopped it right there and MLB paid Piazza 16M (1994 dollars) and gave him an expansion team. It was obvious then MLB was on shaky ground.

    MLB acted like an “illegal cartel” and got caught red handed. It is stunning in MLB’s response they use the Piazza case out of context.

    Also keep in mind guys MLB is always “the last to the party” when it comes to common sense things like instant replay, wild cards,drug testing and now this.

    They are archaic in their thinking and Bud Selig is a prime example of it and he needs to be replaced by a younger commissioner who is more forward thinking.

    In the end, San Jose is attacking only a small piece of the entire A/T exemption as Flood did in 1972. That is traditionally how it is done in A/T law.

    The A’s, if Wolff wasn’t such a pansy should join San Jose in the case as Steinbrenner did in 1998 when he sued MLB. It would help the standing of the case even more than it already is….But Wolff like Selig is a coward.

  93. @robo – the giants mgt. suffers from an inferiority complex – they believe that they need to drive the A’s out of the bay area in order to succeed, and are doing everything in their power to do so. Their goal is to claim a monopoly with the bay area MLB fanbase. The giants mgt.’s behavior is greedy, and illegal in the business world – Selig has allowed them to get away with their illegal monopolistic behavior so far.

    The giants mgt’s arguments are ridiculous – how can the A’s intrude in the gnats’ fanbase by moving 35 miles further away from SF? – what a foolish argument. Also, Oakland is closer to SJ than SF is – the A’s have more of a claim to San Jose than the giants do. The giants claim that they have always been the bay area favorite is equally false. The A’s outdrew the gnats when the gnats played at Candlestick park. Before the BALCO park days, there were likely more A’s fans in the south bay than giants fans. The giants owners’ claims to San Jose are very bogus and foolish.

  94. @sid–the important Piazza case was in federal court in Penn. After an early motion defeat, mlb settled. (Now, now. don’t get your hopes up.) The Florida state cases were just odd — and brought under Florida A/T law, not federal A/T law. One related case brought in federal court got decided in mlb’s favor by the 11th Circuit. I’ll say it one more time: the courts are all over the place on the A/T exemption, but only a minority of them limit it narrowly. That’s the state of the law.

  95. Thanks Duffer, you are absolutely right. I was thinking in terms of franchise movements in general across the US to new/shared markets. So I wasn’t trying to single out Oakland to SJ per say, which has to be the most convoluted situation ever for a potential franchise movement. In doing so I guess I temporarily didn’t focus on the fact that the A’s are just attempting to move within’ what should be a shared territory. So in that respect,parts of my comment were irrelevant.
    I guess the problem might not be with the original ATE itself, but with the fact that MLB has misused it’s original intent over the years.

  96. @Robo – true, Also, it may be necessary to call out the gnats owners concerning their bad business practices whenever possible – since most of the local media appears to be reluctant to do so.

  97. A little late seeing this article and reading the comments about how the major sports run their businesses. NASCAR is arguably “#4” if not #3 instead of the NBA and operates as a sanctioning body only. The race teams are all “independent contractors” who can race as long as they have a car that meets spec and can beat the worst qualifier for each race. Most of the tracks raced at are actually owned by NASCAR. Kentucky Motor Speedway built a track and then sued NASCAR basically stating they were being squeezed-out. I don’t know if they actually won or if it was settled, but Kentucky Motor Speedway now has a race date. Not being a legal expert at all, I wonder what went on in that case could have some bearing on this one.

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