Judge partially sides with MLB in antitrust lawsuit, allows San Jose to argue interference claims

UPDATE 2:07 PM – I’ve uploaded a copy of the ruling. It’s worth a read.

Additionally, San Jose Mayor Reed’s office released a statement in reaction to the ruling:

I am pleased that the judge has allowed our case to move forward. Major League Baseball’s unfair and anti-competitive actions are costing San Jose residents millions of dollars in annual tax revenues that could go towards paying for more police officers, firefighters, libraries, road repairs and other critical services.

San Jose filed this lawsuit after waiting patiently for more than four years for a decision from Commissioner Selig. The court’s decision this brings us one step closer to paving the way for San Jose to host a major league ballclub.

Carry on.

—–

Update from the Merc’s John Woolfolk on San Jose’s antitrust lawsuit against MLB:

And other tweets:

During the hearing last Friday, Judge Ronald Whyte gave indications that he would back MLB based on the standing issue, while allowing San Jose to rework its case and try it in a state court. MLB had pushed for Judge Whyte to dismiss all claims, including those that could be covered by California’s more stringent antitrust laws. San Jose hoped Judge Whyte would rule that the City had standing, which would move the case forward and start a potentially damaging discovery phase for MLB.

Assuming that the tweets above are correct, baseball’s antitrust exemption remains immune to a legal challenge. Instead the case will be about tortious interference, or MLB’s stalling that has prevented San Jose and the A’s from getting a ballpark built. San Jose claimed initially that this amounted to $1.5 million per year in tax revenue, and could be awarded treble damages as a result. Over 30 years that comes to $135 million, not adjusted for inflation.

If San Jose can force discovery into the dealings of its “Blue Ribbon Commission” and other activities related to San Jose and Oakland, it could also force MLB to make a deal since they’re against any kind of opening of their books. There’s a lot more to the TI argument than standing.

A press conference may be in the offing. If it happens I’ll see if I can head out to City Hall.

For now I’ll end with this Bill Shaikin tweet:

Hooray for inertia!

116 thoughts on “Judge partially sides with MLB in antitrust lawsuit, allows San Jose to argue interference claims

  1. Does anyone have any good news?

  2. Slusser weighs in.. @susanslusser 4m
    With the SJ lawsuit not being dismissed entirely, chances of #Athletics getting stadium in San Jose increase. MLB unlikley to want trial.

    Plus this tweet by Wendy Thrum also.. @hangingsliders 18m
    MLB owners will try to avoid discovery of their internal discussions. Could set up well for a settlement.

  3. ML: Would you say this was enough of a victory for San Jose to be pleased?

  4. @Briggs–this is good news–great news would have been challenge to the AT exemption but in reality SJ doesn’t want that–they want MLB to facilitate a settlement to avoid any discovery–

  5. I’m sure the Frisco and East Bay media will fashion this ruling to mean a new Oakland ballpark will be coming soon, but this is Sam Liccardo’s view on the ruling in the SJ Mercury News:

    City Councilman Sam Liccardo said “we have best both worlds.”

    “We’re able to force Major League Baseball to testify in defense of their anti-competitive conduct,” he said, “while having the opportunity to appeal the antitrust issues.”

  6. FWIW, I think it makes sense for San Jose to appeal the anti-trust issue right up to the Supreme Court. Then we’ll have a definitive ruling on MLB’s ridiculous exemption. Let’s see how much longer Selig and MLB are willing to fight just to protect the best interests of the Giants.

  7. Well said by Mr. Liccardo–recall the hope for standing was to force discovery–they now have obtained that and of course will use the threat of appealling the anti-trust ruling as additional leverage. Interesting to note that Judge Whyte did state that the AT exemption makes no sense–

  8. Are the damages in State court limited to money? Or can they actually force MLB to do anything? If limited, couldn’t MLB just write a check and make this all go away?

  9. We have the lower court judge saying the exemption makes no sense but that his hands are tied. If there were ever a case ripe for Supreme Court review, this is it.

  10. GoA’s, I don’t think any judge thinks the ATE makes any sense. It’s just a matter of finding the right set of judges at the right time in the right sequence to appropriately act on it.

  11. Mark: Good question but at what point does MLB stop acting only in the interests of the Giants? As it is now, the A’s collect millions of dollars in revenue-sharing each year because they can’t get a new ballpark and the Giants are blocking them from going where they could get one. Do MLB owners, already writing checks to subsidize the A’s, want to write more checks to the City of San Jose, too, all in the name of the Giants’ best interests?

  12. Mark, it would probably take $100+ for that to happen. I can’t see MLB willing to pony up that amount for one team. I guess they might. But that doesn’t mean SJ has to accept it. And that’s the rub. It takes two to settle and SJ doesn’t have anything to gain except taking it through the system.

  13. there is a part of me that subscribes to the theory that MLB/bs was ok with this moving forward as he recently mentioned that negotiations were “very frustrating”. I took this as the gints unwillingness to negotiate in good faith. This potentially is leverage for him to go to the lodge and say its time for me to do whats best for all of you–not just the gints–and now we have a legal reason to do so—just my thoughts—

  14. Predictably, sfgate (the Frisco media) doesn’t even mention that the judge kept the state case alive until the last paragraph of its story. Sfgate’s followup will probably speculate on a groundbreaking date for a new A’s ballpark in Oakland.

  15. Going to trial and forcing discovery, whether with the ATE or California tort, is fantastic news. Now MLB is forced to either open the books, or to settle. Either case is good.

  16. SFGate may be avoiding the state tort issue, but the fact the case is moving forward at all is great news for San Jose and the potential end to the Giants logjam. MLB wi work to settle to avoid discovery, as many have said from the start.

  17. Yes, it does look like MLB needed a total shutout of San Jose in its case and didn’t get one. The whole thing is kind of funny: MLB blocks money-losing franchise’s move to a larger, far more lucrative city further away from the other MLB team in the region.

  18. I was really hoping the judge would wait until next week to issue his Order. Oh, well.

    The state-law claims that survive are small. I would expect mlb to argue that full-blown discovery on mlb’s decision-making process is not relevant. The alleged interference with the tiny option contract ($25K) is clear (based on the long delay in making a decision); the real battles will be over causation and damages. In fact, it’s possible mlb could stipulate that it intentionally engaged in the alleged interfering conduct, and thereby turn the trial into a penny-ante dispute.

    So don’t get your hopes up. Maybe the remnant claims that Judge Whyte is keeping will smoke mlb out; but maybe not.

    btw, remember the “antitrust injury” requirement I kept talking about, in connection with standing? Judge Whyte makes it pretty clear that it’s missing here, but he avoids ruling on the issue after adopting the broad A/T exemption itself. Consequently, the market definition issue didn’t get decided. That’s dodging a bullet. If San Jose appeals the decision, the A/T exemption will be the issue, not the technical side of A/T law.

    I haven’t been involved in an interlocutory appeal in a very long time, but I think San Jose can ask Judge Whyte to enter judgment on the A/T claims, to permit appeal of them now. (In state court, you almost always have to wait until there’s one final judgment on all claims before you can take your appeal.) So let’s see what Cotchett does next.

  19. This case was about the competitive unfairness between one team against the other team playing within the same market. This did not involve the issue of one team moving to another team’s market. As a result, MLB’s ATE issue did not apply so the case was dismissed only on the ATE issue. Now that the case can go ahead at the state level, the proceedings will expose both MLB and the Giants for acting unfairly by putting the A’s at a perpetually competitive disadvantage by blocking the A’s in their own attempts to get a badly needed profitably operated new ballpark for their team.

  20. Of course, the judge could rule that it’s MLB’s prerogative if it would rather lose Big $$ in Oakland than make Big $$ in San Jose. We can’t force MLB to make Big $$ if it doesn’t want to. But of course, this is all about Selig being too terrified to take on the Giants.

  21. Former lawyer Wendy says:

    Source: http://www.fangraphs.com/blogs/reviewing-the-federal-decision-in-san-jose/

    “My guess is that San Jose will try to proceed on two tracks: ask the Ninth Circuit Court of Appeals to hear an appeal on the antitrust claims immediately and start issuing subpoenas for documents and depositions. MLB will resist both an immediate appeal and San Jose’s effort to dig deep on the league’s decision-making process.

    To me, Judge Whyte’s order screams “settlement” — in the sense that neither side got what it wanted and there might be just enough to get the two sides talking about a resolution. If that’s the court’s intent — and I could be wrong on that — we’ll see him give San Jose wide latitude on documents it can subpoena and witnesses it can question under oath, all with the idea that MLB would rather resolve the matter than have to reveal its inner workings in discovery.

    There are ways for MLB to protects itself even with discovery. Courts issue protective orders when confidential business information is at issue. But this is not just a private business dispute but one that involves city land and funds. It will be interesting to see whether Judge Whyte permits MLB to cloak its documents and witnesses in secrecy.”

  22. also like Wendy Thurm tweet–if judge wants to force a resolution (and her assessment implies his decision does) then he will make it difficult for MLB on discovery.

  23. UPDATE 2:07 PM – I’ve uploaded a copy of the ruling. It’s worth a read.

    Additionally, San Jose Mayor Reed’s office released a statement in reaction to the ruling:

    I am pleased that the judge has allowed our case to move forward. Major League Baseball’s unfair and anti-competitive actions are costing San Jose residents millions of dollars in annual tax revenues that could go towards paying for more police officers, firefighters, libraries, road repairs and other critical services.

    San Jose filed this lawsuit after waiting patiently for more than four years for a decision from Commissioner Selig. The court’s decision this brings us one step closer to paving the way for San Jose to host a major league ballclub.

    Carry on.

  24. I don’t think San Jose gets baseball, but they do get a settlement.

  25. so Ivan–how does Oakland build a ballpark (as well as a football stadium)?

  26. Maybe we should all give up on San Jose. Admit it is over, call it a day and move on. We all lost. Oakland is getting their shit together, has financing. Maybe the land in San Jose can be used for something better than a baseball stadium?

  27. Once again, even if MLB were to sweep San Jose in state and federal courts, it does nothing to address the issue that nobody wants to pay for a ballpark in Oakland and nobody can find a viable site there, either. As was pointed out in here yesterday, Oakland can’t even get a deal done with the Raiders, who are bending over backwards to be cooperative with the city. But the city’s dream of keeping its teams while spending no taxpayer money on facilities construction is not looking too good right now.

  28. @Steven- Oakland has financing? Really…please explain where that is coming from and how they are going to “pay back” this financing?

  29. re: Oakland is getting their shit together, has financing.

    …Did you see the Matier & Ross insider report about how all the Raiders stadium negotiations all come up $300 million short and nobody thinks taxpayers will want anything to do with paying it? And the $300 million shortage for the Raiders doesn’t even consider how much would be needed in addition to that for the A’s.

  30. Oakland’s best hope for keeping the A’s: MLB doesn’t want to take the PR hit of moving a team out of struggling Oakland (Kicking the city when its down) and finally agrees to pay for the ballpark itself. It would be unprecedented, though. MLB expects cities and to pay for these buildings. I’d be OK with MLB paying. But I won’t hold my breath expecting it to happen.

  31. @Ivan,
    I would respond in kind to your comment, but RM would ban me in a heartbeat…FOR LIFE! Again, for the umpteenth time, whether the case was dismissed or continued (or in between as has happened), it has no bearing on whether the A’s will eventually land in San Jose. And SJ loosing in the courts (or winning a “settlement”) does not mean they can’t get the A’s or that Oakland wins. What you implied with your response Ivan was pure straw man (respectfully).
    In the end MLB will prove to all of us that they aren’t stupid: make Santa Clara County (or entire Bay Area) a shared territory like the other two-team markets, indemnify Giants through guaranteed revenues/franchise value, and allow the A’s to relocate 35 miles south to San Jose. Really, are the wealthy owners of MLB going to pass up an opportunity to have TWO wealthy, revenue generating franchises in the Bay Area vs the status quo of just one? San Jose WILL get the A’s and MLB.
    @Mayor Reed,
    Please just shut the heck up! I say this as someone who never liked the legal action in the first place and believes there are more constructive avenues of convincing MLB re A’s future. (Got Diridon Land?)

  32. @pjk,
    Relax on Steven; he was being sarcastic.

  33. @Tony D- you need to understand that to get the rest of the Diridon land may require ED–and in order to exercise ED you need to have a reason for taking the property that meets the guidelines–Got Diridon Land can’t happen fully until SJ can claim they want to build a ballpark there and no one can point to TR and say it ain’t gonna happen-

    regarding Mayor Reed’s comments–like it or not the courts will be involved right up to settlement day–its a bit pollyana to think that the gints are negotiating in good faith or that bs has the balls to do anything that other commish’s would have already done–

  34. @GoA’s,
    Point taken. My problem had always been that the city of SJ has been “acquiring” the Diridon plot since 2005. No matter how its acquired (ED, bought outright), I’ve always felt the city should put its best foot forward and present to MLB a completely clear and ready to build on piece of land for a ballpark. Wolffs basically going to build the ballpark for free in SJ; the city should at least give an equal or greater effort: not taking legal action! Just my opinion.

  35. San Jose has always had the power to take the land by force (eminent domain) if necessary. It can get the land. But it has held off on doing so until it finds out if it can get an MLB team. Incidentally, I checked comments on sfgate and some of them don’t seem very informed: Wolff should sell to someone willing to build in Oakland (who do they have in mind?), Wolff should “build his own damned stadium” (which has always been the plan). And, of course, there’s no acknowledgement that the people who filled up the Coliseum this week were from all over the Bay Area, not just Oakland. Any team can sell out a playoff game.

  36. For San Jose folks, this is about as good as we could reasonably hope. Judge Whyte did as much as he could without going against Supreme Court precedent.

    It moves forward!

  37. Also, Judge Whyte teed this up nicely for an appeal to the 9th Circuit solely on the ATE issue (not standing or other technical matters).

  38. @Tony D- the city would have liked to do what you suggest–however it takes two parties to close a deal–and a Resolution of Necessity requires a city to identify how they will use the property…can’t claim for a ballpark until you have a team allowed to move onto your property.

  39. @all – Per the City Council’s 2010 resolution, no eminent domain actions can occur without the referendum passing first.

    That’s the point. No MLB green light -> referendum -> remaining land deals -> land deal with A’s -> construction. They’re setting up a situation where there’s a hearing in which MLB may end up arguing that, unlike everywhere else they’ve sold a ballpark, in San Jose there will be no economic benefit. That’ll be rich.

    That said, this is not good for San Jose. It’s the bare minimum they could get. The big weapon they had, the antitrust threat, is gone. Yet they can subpoena and depose, and as Mark Purdy just wrote, they could make The Lodge very uncomfortable in the process.

  40. @pjk- not true for ED–need to show that the property being acquired is needed for a project– and to date there is no “project” because of TR. Below is the “resolution of necessity” is the government agency’s formal decision to acquire property by eminent domain. It must be adopted before the condemning agency can commence an eminent domain action in court.

    California Code of Civil Procedure section 1245.230 provides that in order to adopt a resolution of necessity, the government agency must find (1) that the project for which the property is to be acquired is necessary; (2) that the property is necessary for the public project; (3) that the project is located in such a manner as to offer the greatest public benefit with the least private detriment; and (4) that an offer to purchase the property has been made. Unless there are extraordinary circumstances (such as gross abuse of discretion, fraud or bribery), the agency’s finding that it needs the property is generally considered conclusive
    ue on ED without identifying how the land will be used-

  41. “Pay close attention to the next several paragraphs. They include a bunch of legal terms. But they also explain why San Jose might be in good position to eventually force an MLB settlement of territorial rights that would allow the A’s to move south. The precedent is a similar case some 30 years ago filed by Seattle in a legal chess match against baseball. That’s why the Mariners are in Seattle today.

    In fact, it’s downright eerie to study what happened in the Northwest three decades ago and see how much it parallels the San Jose case. The saga began in 1970 when, after the expansion Seattle Pilots had played only one season in that city, the franchise abruptly left for Milwaukee and became the Brewers. Folks in Washington state were furious. The city and county sued the American League owners on antitrust grounds, saying that baseball had violated a contract to keep the Pilots in Seattle for multiple years.

    The original Seattle lawsuit, just like San Jose’s lawsuit, was dismissed on anti-trust grounds but allowed to continue at the state level in another form. The suit bounced from court to court for a few years until it finally morphed into a breach of contract and restraint of trade case against the American League in the Snohomish County Superior Court. Washington’s former attorney general, Slade Gorton, admitted his main goal was simply to get the baseball owners on the stand in front of a jury because they were “a terrible bunch of people” who would help his case.

    Seattle’s claim was that it had lost $9.7 million in taxes and economic benefits when the Pilots breached their contract with the city and split town — just as San Jose is claiming that “contract interference” with A’s owner Lew Wolff’s deal on an option for downtown land has cost the city millions in potential revenue.

    The Seattle case reached a climax in 1976 when it finally went to trial and the American League owners were called to testify. The subsequent proceedings are related in the book, “Becoming Big League,” by author and history professor Bill Mullins.

    Gorton, leading the Seattle legal team, hired his own high-powered lawyer named Bill Dwyer. He used subpoenas to obtain documents that Major League Baseball had not wanted to provide. Dwyer also traveled the country to take depositions from AL owners and ask them why they had the right to abandon Seattle as a major league market and break a contract to keep the Pilots there.

    Once the actual trial began, the case really went sideways for baseball. Charlie Finley, then the Oakland A’s owner, was a loose cannon who grew flummoxed on the witness stand. Bob Short, owner of the Texas Rangers, became combative with Dwyer. Baltimore Orioles owner Jerry Hoffberger walked out of the courtroom and told a reporter: “I don’t want to go back in there — this guy’s ripping me apart.”

    After three days of courtroom embarrassment, Major League Baseball and the AL owners saw where things were headed and negotiated a settlement. Seattle was awarded a new expansion franchise: The Mariners.”

    Source: http://www.mercurynews.com/athletics/ci_24292087/purdy-san-jose-issue-far-from-over

  42. And who moved the Pilots to Milwaukee? Bud Selig.

  43. @ML–anti-trust is gone for the moment–appeal will occur–it strikes me that mlb can’t be comfortable that a judge openly says the AT exemption is bs but he is bound by precedence…at his level.

  44. Ivan, a settle requires both sides to agree. If SJ’s end game is the team, they have control over that outcome. That’s not say what xoot said isn’t possible.

  45. The Mark Purdy column on the implications of the Judge’s decision on the A’s and their future in San Jose is a breathe of fresh air. What a difference as compared to the stink coming from most of the Bay Area sports columnists who have a puppet string attached between themselves and the Giants’ ownership.

    One thing for sure about these legal actions is that the Giants can’t be too pleased about the publicity coming out from the Mark Purdy column that fully points to their involvement in blocking the A’s from moving to San Jose.

  46. Awesome. This dubious deadlock continues.

  47. I think the most notable thing about Judge Whyte’s rhetorical assault on the A/T exemption is that it’s entirely based on quotations from earlier cases–including Blackmun’s U.S. SCt opinion in the Curt Flood case. In essence, J. Whyte is joining a chorus. Keep it in perspective.

    Maybe the big baseball fans on the high court (Alito, Breyer, Sotomayor, and, if that picture of her excellent batting stance in a softball game is good evidence, Kagan) can convince one other colleague to vote to take the case, if San Jose pursues it all the way through the 9th Circuit appellate process. Maybe.

    More likely: the next time someone sues mlb over the A/T exemption, Judge Whyte will get cited prominently.

  48. At this point I’m like “who cares about baseball’s ATE! Just let us have the A’s!” Wolff, Selig and MLB have to know that from a revenue standpoint San Jose is the best place for the A’s. And they also know that the A’s in SJ won’t hurt the precious SF Giants one bit. Again, let’s have TWO succesfull franchises in the Bay Area and be done with all this legal nonsense. Much like what’s happening in DC, this is a self-manufactured crisis that doesn’t need to be taking place and that could be remedied rather quickly. I know our in-house attorneys are enjoying this saga, but I’m not..

  49. Great article here and at Mercury News. The proposed ballpark design seems small and unapealing. Could it be a hitters friendly ballpark? Yes I also agree with all of you, sell the Team to a group of people who actually care for baseball. D any of you like the Cisco Field design?

  50. It was nice of Judge Whyte to issue this ruling during the baseball postseason, just to give Frisco fans some baseball news they can relate to this time of year. After a first-to-worst season, even a Pyrrhic victory like this is good news for that lot.

  51. @mossback,
    A “victory” for Frisco fans? Please explain..(this bull shit ought to be good…)

  52. @Tony D: A Pyrrhic victory is a victory with such a devastating cost that it is tantamount to defeat.

  53. @RB-Giants fans don’t care where the A’s play. Baseball-fan lawyers with an antitrust interest do. (Much to Tony’s dismay, apparently. Sorry, man.)

  54. I don’t like to repeat this, however it appears necessary. The Cotchett law firm has already stated that it will fight MLB all the way to SCOTUS if necessary. This is no victory for the gnats mgt. or Selig, the A’s fight may have indeed only begun. The judge’s ruling for the state torts is an added incentive for MLB to settle – MLB will likely settle with the A’s before the SJ vs MLB case reaches the SCOTUS.

  55. Self-described giants fans like to haunt A’s fan blogs all year long and especially in the postseason, so they seem to have a very high interest in where the A’s play their home games, @xootie. When the Angels were building their Anaheim digs, they shared Chavez Ravine with the Dodgers. When the A’s finally get the green light to San Jose, it would be interesting to see how well they could draw in a shared ballpark scenario with the (nearly) last place 100 loss giaints.

    As for the case, the Purdy column was wonderful. I can only imagine with glee the spectacle of Bud & Charles Johnson on the witness stand describing the “complexity” of changing five words in the MLB operating rules in order to let the A’s move 35 miles farther from the Frisco tourist strip. This is going to be a fun offseason.

  56. Today is just crap, crap, crap.

  57. @mossback,
    My bad man ;). Been hounded by straw man replies so much that I jumped on your comment as if it were more of the same. And thanks for the definition of pyrhhic; I honestly didn’t know that 😦
    @xoot,
    Not so much I don’t like the legal stuff; just don’t think any of it is necessary (see my previous “deal proposals”).

  58. FYI: xoot – the Dodger’s NLDS playoff series tv rating are up 30% over 2012 playoffs involving the gnats (no wonder the Fox network appears to loathe the giants so much!) LOL

  59. Judge Whyte based on his statements you can tell knew MLB was wrong and that SJ did have A/T standing but he felt it was not in his “prevue” or jurisdiction to hear the Federal claims. He is a merely Federal district judge.

    He felt since SCOTUS gave MLB the exemption it was up to them or Congress to decide this not him. He essentially felt this was “above his pay grade”.

    The State Claims were another story and Whyte let that move forward because he “smelled” something stunk about MLB and this whole BRC process.

    Going forward it was Piazza who appealed his Federal Claims to the 9th circuit and won big time. His state claims went to the Florida Supreme Court and he won big there as well.

    But he had to fight through the lower courts to achieve status with the higher courts.

    American Needle vs. NFL is the perfect example. American Needle lost miserably in the lower courts including the 9th circuit. The NFL got greedy and wanted to go all the way to SCOTUS for an exemption much like MLB has.

    They lost 9-0 and it was obvious the NFL had violated A/T laws but the lower courts ruled in the NFL’s favor.

    With that being said San Jose should fight this lawsuit on two fronts. Appeal the Federal Claims to the 9th Circuit and fight the State Claims much like Seattle did against MLB in the 1970s and force MLB to turn over notes from their meetings and internal discussions.

    MLB may act like they won but they lost in reality. The Federal Claims were never going to be heard in a court this low while the State Claims were allowed to move to discovery.

    San Jose needs to press on, they like American Needle and Piazza have a greater victory ahead of them and they should not get discouraged.

  60. @Tony D., I agree with you that this lawsuit brought on by San Jose should not have had anything to do with the revoking of MLB’s ATE. The Judge’s ruling confirmed that point. However, the lawsuit should have been about the unfairness coming into play when two exact type businesses share the same market, but one business blocks the other business from setting up shop in the site of their own choosing. The sole purpose of the former’s action is to maintain a strong competitive advantage over the latter within their shared market. The long-range goal of the former is hopefully to eliminate the competition from the latter, or at worst make the latter competitively irrelevant. The dispute between the Giants and the A’s is a specific example. In this case, the Giants are blocking the move of the A’s to San Jose for no other reason than to maintain a distinct competitive advantage over the A’s within their shared Bay Area MLB market. The Giants are using MLB’s ATE and the fact that MLB approved the division of the Bay Area market into two distinct separate territories, as the basis for blocking the A’s from building their own badly needed new ballpark on the site of their choice.
    I believe that a court will ultimately rule in favor of San Jose and force MLB to approve the A’s move to San Jose. However, San Jose must show proof to the courts that MLB’s erroneous actions were based without regard to the following facts:

    1. That MLB’s ATE was not intended to be applied to MLB franchises already sharing the same market.

    2. That the terms “territory” and “market” is meant to be one and the same, and must be consistent with all the other shared two team markets within MLB.

    3. That the A’s granting to the Giants “territorial exclusivity” to the South Bay was not necessary, and was solely based at that time on an anticipated move of the Giants to that area. However, the Giants never moved there and remained in San Francisco. As a result, the A’s offer should have been considered null and void. With that fact, the Giants so called “territorial rights” to the South Bay should not have been included in MLB’s constitution.

    4. Finally, Since the A’s did not receive any compensation from the Giants for erroneously giving up their so called “territorial rights”, the A’s should not have to give up any compensation back to the Giants, if MLB does correct their error and reverts the entire Bay Area back to a fully shared market.

  61. Also San Jose city officials would be wise to continue challenging the MLB ATE, (judging by their opinions and actions, they are likely to do that anyways)- that way they can keep up the pressure on MLB and the gnats mgt. with a two-pronged attack – the state torts, and continuing to challenge the MLB ATE.

  62. BTW, did anyone read the nonsense by Robert Gammons in the East Bay Express? Those writing complete bull shit on this saga continue to out do one another…

  63. http://sports-law.blogspot.com/2013/10/judge-whyte-issues-ruling-in-san-jose-v.html

    Note a few things: Sometimes a judge will include a statement in an order certifying the decided claims for interlocutory appeal. Judge Whyte did not do so here. San Jose surely will seek the certification. If Judge White grants that motion, then it’s up to the 9th Circuit to decide if it wants to accept the certified appeal of part of the case. Meanwhile, mlb will move to stay the little tort claim that remains, probably arguing that it makes no sense to take limited discovery on that part of the case only to reopen discovery broadly if the A/T claims are returned to the trial court. If Judge Whyte does not certify the dismissed claims for interlocutory appeal, they’ll just sit there until the rest of the case results in a final judgment.

    See 28 U.S.C. sec. 1292(b); see also Fed. R. Civ. P. 54 (less likely here, I think). And if you’re really interested, google “Hanni v. American Airlines November 2008” for an example of one of Judge Whyte’s colleagues in the Northern District refusing to certify dismissed claims for interlocutory appeal.

  64. Don’t worry xoot – the case will likely eventually be heard by the SCOTUS – if MLB doesn’t settle with the A’s/San Jose before that occurs.

  65. Also, xoot – I don’t mean to be rude – however, the giants organization and some of their fans would make for a fascinating case study in sociology – mass neurosis and denial on a huge scale. I was debating online with another gnats fan who argued that the south bay is a “vast wasteland”. When I pointed out that the Niner’s organization evidently believes otherwise, the gnats fan then claimed that the Yorks were moving to Santa Clara because Santa Clara voters were willing to fianance most of the cost of the Niners new football stadium. What a complete crock of b.s.- SF voters did fact previously voted in favor of funding most of the cost for a new Niners stadium in SF (when Ed DeBartolo ran the team) When the Yorks took over ownership, they opted to reneg on that deal and instead move the team to Santa Clara – and fund 85% of the cost for the new Niner’s stadium themselves – the true facts are completely opposite of this goofy gnats fan claims what occured. You gnats fans definitely have a talent for piling the b.s. and spin and avoid the truth at all costs.

  66. duff, I’m sorry to hear that you encountered a hostile and apparently ignorant Giants fan online. My advice? Just ignore the guy.

  67. Boy….I think I agree with Robert Gammons, no matter how San Jose and its supporters try to spin it, the court’s decision was a huge blow to San Jose.

  68. @DH,
    Actually, the spin is coming from Gammons and his supporters like yourself, but whatever, it’s your world…

  69. @Dennis. I have to disagree. Is it a stunning win for MLB? Nope. Most figured they would lose the first round related to the ATE. Is it a major win for SJ? Again, nope. They didn’t get the Holy Grail. What’s left? The state issues and on that SJ got its foot in the door. That is a win. To have a chance at a win you have to get in the game and SJ has done that.

  70. @Dennis H. I agree with you, I guess this could be good news, for SJ in the long run, but I really dont see it (not that I dont wont it to be good news for SJ), and yes I am a Pro-Oakland fan, but I have no problem with San Jose, and would love to see the A’s in the South Bay (if it cant work in Oakland or Fremont), that being said I find some of the comments from Proonly SJ folks to be almost as ridiculous as the Proonly Oakland folks.

  71. Correction – most figured MLB would win the first round on the ATE issue.

    That’s what I get for typing post op. Silly Vicodin.

  72. @Lakeshore, on that we agree! Great start to the hockey season. Wonder how long before ML is covering the story of the Sharks needing/wanting a new home? Not just talk, but actual rubber meets the road action related to a new tank.

    • @MrSteve5150 – The Tank is only 20 years old and works and functions great. Constant sellouts. W’s want to build a basketball-first arena. Sharks are not going anywhere for a while.

  73. MLB has to be pretty upset with Oakland over this. This whole case comes about because of Oakland’s willful neglect of the team. Disposing of the San Jose lawsuit still leaves the A’s with no new ballpark in sight. And Bud continues to look foolish having made his A’s “cannot and will not” continue in their current situation comment. They ARE continuing in their current situation – endlessly.

  74. Who the hell reads Robert Gammon and cares, anyway? This is not a stunning defeat for San Jose and the only people who will say that it is are people who want it to be. Is it a stunning defeat for MLB? Of course not, but it isn’t a victory either.
    .
    We all get caught up in the fallacy that every individual event in this process is a solid win or loss for one of the parties involved. That’s ridiculous. San Jose has set in motion a long term strategy to bring an end to their desire for an MLB team. A minimum requirement in order for that strategy to succeed, step one was “don’t get everything tossed out in court in the first round.”
    .
    That minimum requirement has been met, but not exceeded. There are other steps coming. Most importantly for San Jose are the things that xoot, Wendy Thrum and others that actually are lawyers have been pointing out. San Jose has to successfully argue for a depth of discovery that makes MLB uncomfortable in the interference case and the federal appeal has to move on to the next step.
    .
    Those are the steps that are going to answer the question of “How over a barrel does San Jose have MLB?” The answer can still be “Get the gimp!” or “What barrel?” There will be other questions that follow, but to state that MLB has successfully protected its ATE is more wishful thinking than reality.
    .
    Meanwhile, in Oakland… crickets. You have three of the major sports leagues in our country (the top 3 by revenue) all looking to get out of dodge. This process with San Jose and MLB is just a small part of a much larger movement. Oakland is still desperate for real leadership on this issue and the “plan” of the current mayor has now pushed the Raiders into looking at outlying suburbs and the Warriors to San Francisco.
    .
    Good grief, what a mess.

  75. PS- Mark Davis and Joe Lacob Hate Oakland

  76. Whoa @Jeffrey. Calm down. You are getting a little emotional there. I promise you…its going to be alright. My guess is that the same folks that read this blog are the same folks that also read Robert Gammon.

  77. @DH,
    Seems rather odd that someone who kneels to Gammons would tell Jeffrey to calm down. Akin to a homeless person telling me to get a life…

  78. @Jeffrey Thanks I agree 100%. You saved me, if not for you, I would have had to write all of what you said… P.S. Its easy to over react to news when there is so little. San Jose cant make any (because MLBGiants), and Oakland wont make any (because ?)

  79. After the judge’s ruling, attorney Joe Cotchett affirmed that the ruling would be appealed. The SJ vs MLB case will continue. It would be surprizing if MLB doesn’t reach a settlement with San Jose and the A’s even before the state torts case goes to court.

    One has to believe that Selig and MLB is now questioning what type of mess the giants mgt. has dragged them into. There is a good possibility that MLB could lose both the state torts case, and the MLB ATE. Besides, Selig recently said that the Coliseum is a dump. After the WS series, MLB will likely ratchet up the pressure to end this and settle with the A’s and San Jose.

  80. It’s likely Cotchett already has counseled San Jose officials to expect losses in district and appellate courts, precisely with the goal of getting the case to the US Supreme Court, which will have Selig shaking in his boots. Declaring San Jose the loser now is like declaring the A’s have lost the game because they’re behind, 1-0, after the first inning.

  81. It’s likely worse than that for the giants mgt. pjk. Now, with the fact of the state torts portion of the lawsuit getting the ok by the judge, MLB will now be required to go before a judge and have plenty of explaining to do about the situation – which they do not relish. MLB is now probably really getting concerned about this mess.

  82. Dennis, I assure you I am hardly emotional about this subject. Robert Gammon is a fine writer. His story that detailed the years long process that led to the “Cisco Field of Fremont” announcement was top notch reporting.
    Since that time, he has written many opinion pieces on the subject that lacked a grounding in reality. This is one of them.
    In general, wanting facts to mean something different than what they actually mean, and letting your desire trump reality, is a bad way to formulate an opinion.

    • @Jeffrey/”Dennis H.” – I got into it with Gammon on Twitter over his overstatement of the case. After a few minutes, he admitted that the best, most balanced take came from Wendy Thurm at Fangraphs. I agreed. Gammon writes a “muckraking” column/blog focused on Oakland. He’s writing for a particular audience. I’m not going to blame him for playing to the crowd.

  83. Duff, I don’t think any reasonable person can predict what MLB is thinking. Partially because MLB has been pretty ridiculous throughout this process. But also because they could just as easily blame Lew Wolff and San Jose for upsetting the apple cart.
    These guys are monopolists. They believe the best way to grow the business is to stick to the status quo.

  84. @Jeffrey – you have a point, Selig and MLB can’t be that nuts though. Perhaps the gnats mgt. has some dirt on Selig more damaging than MLB losing its MLB ATE status – that’s the only other conclusion why Selig is continueing to side with the giants. The state torts case will give MLB added incentive to settle with San Jose. Another conclusion is not to get on SJ mayor Reeds’ shit list – which Selig has evidently done.

  85. Another reason could be that MLB believes the Bay Area can’t support two teams in the long term and they are waiting for another market that makes sense to develop a plan.
    Or they don’t want to green light a privately financed stadium and they are waiting for somebody to pony up coin.
    It’s not as straightforward as “San Jose is a slam dunk.” If it was, this would already be over.

  86. Until the SJ vs MLB lawsuit though, there was no incentive for MLB to stop the status quo. Now there definitely is – one would believe the prospect of losing two lawsuits and the MLB ATE would be enough to get Selig sobered up and solve the mess.

  87. I’m sure that both the Giants and MLB are not too keen about the prospects of being the recipients of continuous negative publicity that will likely occur from the ongoing lawsuits that San Jose has pledged to continue. Despite the Giants’ claims to the contrary, the Bay Area is very much in fact a two team market. If the Giants continue in their relentless pursuit of blocking the A’s from moving and building their new Bay Area ballpark on the site of their choosing, it could lead to a negative backlash against the Giants from even its own fan base. I’m sure that if Giants fans were polled, the overwhelming majority of them would not object to the A’s move to San Jose, or for that matter anyplace else within the Bay Area. It will be nice to begin to see by next season an erosion of some South Bay corporate advertising sponsorship of the Giants, and especially an erosion of some season tickets as well. If that does become apparent, that will do more to force a settlement to allow the A’s to move to San Jose than any other factor.

  88. @jeffrey,
    The Bay Area is only getting larger and richer. It’s a two team market now and will be even more so in the long run.
    Perhaps this delay is about the private financing scheme and the possible debt load the A’s would carry (especially if they’re buying the land in SJ to). If only we could read Wolff’s mind…

  89. Come on, lighten up. mlb itself calls the Bay Area a major two-team market. That’s why, under the current CBA, the A’s transform from a low-budget revenue-sharing receiver to a big-market revenue-PAYOR the very moment they open a new ballpark. That’s a big swing of black to red on the books, boys. Wolff/Fisher aren’t looking forward to it. What if the San Jose move is only somewhat successful? The profits get erased.

    mlb will announce next year, before Bud S. officially departs, that the A’s may move to San Jose in 2017. That will be the first year of a new CBA. The revenue sharing provision in that agreement will give the A’s another exemption from paying revenue-sharing money unless they hit certain revenue thresholds. Behind the scenes, for a few years the A’s also will pay the Giants a yearly amount for merging the territories.

    The San Jose lawsuit will fizzle. There will be no serious bad publicity for anyone, unless people get angry at Wolff/Fisher for being complicit in the long delay.

    The A’s and Giants will end up sharing the Bay Area the way the White Sox and Cubs share Chicago.

    Book it.

  90. @Xoot, you may be correct. However, it may occur much sooner than that – because of the state torts portion of the SJ vs MLB case going forward. Selig will wish to avoid explaining all the bizarre MLB decisions, or lack of them, about this mess – to a judge in a courtroom.

  91. I have had so many reminders, lately, that tone doesn’t come through on the Internet.
    I wasn’t saying that I think the Bay Area is a two market, just throwing out realistic reasons MLB wouldn’t want the A’s in SJ.
    I basically agree with xoots take. The question MLB has been wrangling around is “how would the a’s in (insert city of your choice) impact revenue sharing?”
    The Giants FUD move is “we will become takers.”

  92. Did anyone else see Wolff being interviewed by Kuiper and Fosse the last time the A’s were in LA? They briefly touched on the ballpark issue. When asked for an update, Wolff’s response was that there are owners that want to protect their interests. His response tells me that Selig still does not have the votes to get the move approved. Don’t know whether the recent ruling will have any effect on these owners, but no doubt the A’s to San Jose will be on the agenda at the next owner’s meeting.

  93. Dang it, I meant “I am not saying the Bay Area ISN’T a two team market.” I believe that it is. Half this market is better than any available potential one team market.

  94. @fc- Selig has the votes or he would have struck down San Jose a long time ago and this would all be a moot point. Wolff at that point would have given up and would sit in the Coliseum for a few more years and sell to “anyone” with pockets across the country and even letting the team leave.

    The A’s in a new ballpark in San Jose would be off revenue sharing their first season. Right now they have zero premium seating and their club level isn’t really one because people have to pass through it to get to the other side.

    In SJ, they would have a club level, field level, and state of the art suites to sell to the plethora of corporations in the backyard. Not to mention charge far higher prices for regular seating.

    This notion the Giants and A’s would be revenue sharing losers if the A’s move to San Jose is such nonsense.

    San Jose has to push the lawsuit, Seattle did and got a team, Tampa (Piazza) did and got a team….San Jose must follow suit.

  95. Sid, if Selig had the vote, it would be over by now. Odds are he doesn’t have the vote. The reason he hasn’t struck it down is two-fold, it opens a potential lawsuit with the city (which now is moot) and because they don’t have a better option. And it’s likely “close” meaning only needing one or two more, so it’s better to both work on those who may be swayed and work on getting the two sides to reach their own agreement.

  96. @Sid I agree with most of what you said, but I here a lot of people (not sinply you), bring up Seattle and Tampa, as if simply by fileing San Jose vs MLB will get the A’s SJ, I just dont think its going to be that easy, one big thing thats not the same there was not another team (SF Giants) MLB team saying they owned the area of Seattle or TB

  97. @Lakeshore Neil – the writing is on the wall. It appears that the only way that the A’s will remain in Oakland is if a wealthy prospective MLB owner swoops in, gives Wolff a ridickulous offer for the A’s, and then funds a new ballpark in Oakland.

    The MLB ATE is in big trouble if it reaches the SCOTUS, MLB could very possibly lose both the state torts and MLB ATE lawsuits if they don’t settle with the A’s and San Jose before those two cases go to trial. It would be surprising if Selig doesn’t settle before the 2014 season. Xoot is likely correct when he says that Selig will approve the A’s move before he quits in 2015 – Selig may approve the move much earlier than that because he wants to avoid a trial and some explaining to a judge how MLB has dealt with the situation.

  98. @Sid – If Selig had the votes, we’d be talking about ballpark dimensions rather than lawsuits. Selig wants the A’s in San Jose. If he didn’t, he would have already told Fischer/Wolff so.

    I don’t see the Giants right now as being the primary problem. If the league is for the move, the Giants will fall in line. For all we know, the Giants and A’s may already have the framework of a deal in place, but hesitation on the part of some of the other owners may be keeping the deal from being approved.

  99. I believe the Giants ARE the major roedblock. Selig said as much recently: “Look, you have one team that wants to move and the other team doesn’t want them to move, and it’s a very complicated situation. Before I leave, I’m satisfied we’ll work out something.”

  100. Wolff has already stated that he has the “majority” of owners ready to approve a move to SJ. Also, if the committee recommends San Jose (which appears likely based on Wolff quotes earlier this year), Selig will make sure ALL the owners fall in line with their support. Lastly, there shouldn’t be any “hesitation” with the other owners re an A’s move 35 miles south to SJ. By now they all know the history of why the Giants have exclusivity to SJ, they realize that all other two-team markets are shared and THEY ALL KNOW HOW TO READ A MAP. The A’s are trying to move within the market; they’re not trying to move to SJ from Alberta Canada..

  101. @fc – don’t mean to be rude, you are completely off base about that – The giants mgt. has been the problem all along. No owners have yet publicly sided with the giants owners. At least three MLB owners have went public supporting the A’s. The so called small faction of owners who are against the A’s move may be fictious – along with many of the giant’s owners claims. The giants owners are the bad guys. Also, over a year ago, ESPN reported that Selig was politicking MLB owners to approve the A’s move and was having success. There is likely at least a majority of MLB owners who approve the A’s move.

  102. @duffer – No offense taken.

    I don’t doubt the majority of MLB owners are in favor of the A’s moving to San Jose. The problem is that the A’s need at least 75% of the owners on their side.

    There was a time when I thought the move to San Jose was a “slam dunk”. The BRC probably concluded long ago that San Jose was the best place for the A’s. Fremont was dead, and nothing was going to get done in Oakland. But all this waiting has got me thinking there has to be serious reservations by some of the bigger market teams which is preventing this move from being approved. Wolff said in his interview that there are some owners that want to protect their interests.

    The Giants’ management has been a problem, but I don’t think they are the primary reason why this issue hasn’t been resolved. As far as some owners are concerned, they could care less about any deal which may be struck between the A’s and Giants, or the fact that the A’s are moving farther away from the Giants. They’re more concerned about how a move by the A’s would jeopardize their interests in the future. Frankly I don’t blame them, it’s just good business practice. Shouldn’t the fact that Selig has had to do some politicking tell you that there are owners out there that have some real reservations about approving the move? Doesn’t sound fictitious to me.

  103. @fc,
    Your right: Wolff didn’t say he had support of 66.6666666 of the owners for a move (roll eyes). Cmon man! Jerry Rheinsdorf, owner of the big market White Sox and perhaps the most influencial owner in MLB, supports an A’s move to SJ. And what hypothetical “interests” are the owners trying to protect by not allowing the A’s to move further south of the Giants? These guys didn’t get uber rich by being stupid and lacking common sense. Again: all other two team markets are shared territories, Giants have exclusive rights to SJ for one reason, and the A’ would be moving further from the Giants within the same metro area. This isn’t akin to a third team hypothetically moving to NYC; would be more like the Mets moving further from the Yankees to Brooklyn.

  104. I can see why, for selfish reasons, there may be some in the MLB Lodge who would much prefer smaller and medium sized market franchises to remain just right where they are; and for them to not be able to move up the ranks towards the larger market level. The reason is simple, and its all about restricting competition. The financial disparity between the smaller and larger market teams, as relating to team budgets and payrolls, is wider than ever. As a result, even with so called “revenue sharing” it has become increasingly more difficult for smaller market franchises to consistently field playoff caliber teams. The Tampa Bay Rays and the A’s, to their very skillful credit of their management, have been able to do so. However, this season and in the more recent past, no smaller budgeted teams have gone far into the playoffs nor have made it into the World Series. While in general it is extremely difficult for franchises in smaller market conditions to be able to significantly increase their revenue generating potential within the constraints of their respective markets, the A’s do have a unique situation that could enable them to become large market players within the MLB Lodge. To some selfish members of the MLB Lodge, IMO, it is the main reason and stumbling block preventing the A’s from getting approval to move to San Jose.

  105. @llpec,
    If what you said was true, then the Expos would still be playing in Montreal and Washington DC/Baltimore metro doesn’t have a second MLB team.
    Man there are some real idiots commenting next door on Twitter; especially the ones with the anti-Wolff nonsense..

  106. @Tony D. Man I have got to the point, that I dont even read the other stuff (so tired of SF media ), this blog is really the only thing I check out, that way if I disagree with someone, I know they have some amount of reasonable information.

  107. Tony D., MLB does not want any franchise to take a bloodbath financially. It does not serve to anyone’s benefit if any franchise is taking huge financial losses. Ideally, MLB would want for all small market franchises to operate in the black with the help from revenue sharing and by responsible budgeting, which is a result of having to operate with lower revenue streams. As of now, MLB is very concerned about the question of whether markets such as Tampa Bay can ever sufficiently be able to support a MLB team.

    The situation in Montreal had become increasingly most difficult for the Expos during their last years there. They were unable to find sufficiently supportive local based ownership for their team. This was most crucial, since Montreal was culturally very different and distinct from all the other North American MLB markets. The local based ownership began to operate the team on the cheap, without regard to putting a respectable team out on the field. As a result, the Expos had alienated their once thriving fan base in such a way and for such a long time, it became apparent that their fans were no longer coming back, no matter what.

  108. re: MLB does not want any franchise to take a bloodbath financially. I

    …Which is why MLB is not going to sign off on a privately funded ballpark in Oakland.

  109. “…Which is why MLB is not going to sign off on a privately funded ballpark in Oakland.”

    @pjk, Good point! A privately funded ballpark at a less than desirable site is a bad money losing proposition, and MLB knows that…

  110. …Meanwhile, I’m still hearing from Oakland-only folk that there are plenty of rich people ready to build a ballpark with their own money in Oakland. The name that immediately gets brought up is Don Knauss, who has never actually offered to buy the A’s. He hasn’t even offered to have Clorox match the Cisco naming rights deal in San Jose. I’ve even heard Pleasanton suggested as a ballpark site in the A’s current territory. OK. A remotely located small-town-like suburb off of Route 680 is going to be place for a 40,000-seat baseball stadium. Good luck with that..

  111. Personally, I think there is framework agreement in place for the A’s to “explore” other areas (including SJ). I think the prohibiting factor causing delays is the CBA, more specifically LW/JF’s hesitancy is to lose baseball welfare AND pay the Gnats. Yes, I think there is a monetary amount that will be paid, and there is probably a backdoor agreement of the amount that is essentially subsidized by MLB by virtue of them staying in Oakland. I don’t think the A’s want it to be known publicly because they are essentially using Oakland to get the welfare checks, and the Giants don’t want their fanbase to know that extra money is coming in, since they would want them to spend it (look at Baer’s latest mails to STHs). In the end, this compromise would have all parties win: Oakland get’s the A’s a bit longer, Giants get their money, A’s get San Jose, and San Jose gets an MLB team.

  112. @FC- Selig wants a “consensus” meaning he wants all 30 owners to agree. The Giants refuse to and that is the issue.

    Selig wants unanimity but he cannot get it. If he could this would be over with. Selig has 75% at least, it was rumored by Larry Stone (Santa Clara County Assessor) that Steve Schott went to every owner 10 years ago and got way more than 75% of the owners to agree.

    When Schott went to Selig with this asking for a vote, Selig was so furious that Schott went around him that he announced in 2004 no A’s in San Jose.

    Schott seeing he was finished turned around and sold the team to Wolff. Wolff then went to Fremont and Selig was relieved and when it fell through he felt it was possible to get the Giants to agree to a SJ move…..Not the case.

    Selig has the votes, otherwise this whole situation would be a moot point. In the end he wants 100% of the owners to agree to a T-rights change even though 75% is enough….His cowardice is unreal.

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