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At least one person thinks San Jose has a strong case against Major League Baseball

Jun 20, 2013, 9:14 AM EDT

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Unfortunately that one person is ESPN’s legal analyst Lester Munson who, as we and many others have noted over the years, tends to get things pretty darn wrong pretty darn often. You won’t be shocked to hear that I feel like he’s off on this one too.

To be fair, he is half right. He analyzes Major League Baseball’s antitrust exemption and notes just how anomalous it is. He also notes that, in the right case, the Supreme Court would probably overturn the old Federal Baseball Club vs. National League case which gave us the antitrust exemption in the first place. It’s really a piece or garbage precedent. Where he’s wrong is in thinking that this is the right case.

As I mentioned the other day, the biggest hurdle to San Jose’s suit is getting its arguments heard on the merits in the first place. That’s because, in my view and the view of many others, San Jose lacks legal standing to assert a claim against Major League Baseball and hasn’t alleged any actual damages, as opposed to speculative ones. San Jose claims it will lose money if the A’s are not relocated there. It has made no allegation, however, that it actually has been damaged by any act of Major League Baseball. Munson makes no mention of this whatsoever.

He does mention the American Needle vs. National Football League, case, however. This is one that should come up a lot in talking about the San Jose case, so here’s the quick and dirty: American Needle made NFL-logo merchandise for various teams. The NFL then said, nope, all merch will now be made by Reebok and Reebok only. American Needle sued, saying that the NFL’s anticompetitive act — 32 teams and the league conspiring to shut out competitors to Reebok — violated the law and caused its existing contracts to go bye-bye.  American Needle won that case, with the Supreme Court pounding the NFL’s claim to antitrust protection 9-0.

Here’s the difference, though: American Needle had a contract with NFL teams. It had a vested financial interest in doing business with these guys. Then the NFL came in and said “sorry, you’re shut out.” It had something then lost something by virtue of the NFL’s action.  San Jose has no similar interest or damage. It has a contract with the A’s that gives the A’s the option to purchase some land. The terms of that contract are entirely fulfillable without MLB doing anything. The A’s have paid San Jose the $50,000 the contract asks for. The A’s have not, by any report whatsoever, moved or attempted to move to actually buy land in San Jose, let alone move the team there. More importantly, the A’s are not a plaintiff in this suit. If they were I think it would be a totally different ballgame and MLB would be in big trouble. But that hasn’t happened.

There is always a chance a judge will go off the reservation and make a surprising ruling. As such, sure, there is a chance that San Jose’s suit goes farther than I think it will (and man, I hope it will).  But that’s pretty unlikely. And no matter the odds, Munson makes no mention of Major League Baseball’s possible defenses at all, let alone that they have some pretty stout defenses. There is not one passage in his column noting that, just maybe, the San Jose lawsuit isn’t a slam dunk. If a first year law student provided an analysis like Munson’s on a civil procedure exam he’d probably get a D, at best.

If you just read Munson’s analysis and nothing else — and given that he writes for the biggest sports media company on the planet, many probably have — you’d get a pretty skewed idea of what’s going on here. And the fact that ESPN continues to be cool with that sort of thing from him is frankly amazing.

  1. jwbiii - Jun 20, 2013 at 9:27 AM

    If you take the opposite stance of Lester Munson on a legal issue, you’re probably right. Nice catch by Les on the American Needle case, though.

    Disclaimer: Many years ago, I served on a charity board with Munson. This was at the time when he was drinking himself out of the legal profession. He never took me out for five martini lunches. Yeah, I’m bitter.

    • thermalito - Jun 20, 2013 at 12:55 PM

      The American Needle case is absolutely significant as it continues a long trend of courts siding against professional sports monopolies regarding anti-trust issues.

  2. hushbrother - Jun 20, 2013 at 9:34 AM

    Craig, when you say you hope the judge goes off the reservation and prolongs the case beyond its seeming lack of legal merit, do you think that’s a good way for judges to do their job? Isn’t that “activist judging?”

    Regardless of how one may want a case to be decided, a judge should consider him or herself duty bound to interpret the law as it’s written. Unless it involves screwing over the Yankees.

    • Craig Calcaterra - Jun 20, 2013 at 10:00 AM

      No, it’s crappy judging and don’t endorse it. I just would be happy to see the antitrust exemption end.

      • thermalito - Jun 20, 2013 at 12:52 PM

        What you are discounting is the fact the courts have not been friendly towards professional sports leagues in the least when it comes to anti-trust issues in recent years. So the point about the NFL losing 9-0 is absolutely significant. Also notice how the plaintiff ended up getting what they wanted pretty much everytime MLB was sued for anti-trust. MLB telling a major city and team who both want to be in business together they can’t based on a shady territorial rights deal is a precarious legal position at best. One can only imagine the rest of the owners standing on pins and needles over their anti-trust status while that clown Bud Selig has to testify and explain what he meant when he said the Giants being gifted San Jose territorial rights was “good for baseball” while the same for some reason does not apply to the A’s.

  3. paperlions - Jun 20, 2013 at 9:42 AM

    I think using the phrase “go off the reservation” to imply a negative context is a wee bit inconsistent with the Chief Wahoo stance. It is the equivalent of using offensive terms like “Paddy Wagon” and “cotton-picking hands”.

    • downwithespn - Jun 20, 2013 at 9:59 AM

      Speaking as someone who is sensitive to the nuances and subtleties of language, I think you’re reaching a bit here.

      First, “go off the reservation” does not imply negative or positive action; it implies unexpected action. OED: “to deviate from what is expected or customary; to behave unexpectedly or independently.”

      Second, evidence suggests that the term was developed by white traders to refer to one another. They could go to the reservation, and secure fairly easy (but fairly low) profits. Or they could go “off the reservation” in hopes of scoring bigger, but at greater risk.

      Third, the first actual appearance of the phrase in print was in 1898, and on that occasion it was used to refer to the Spanish-American War. Specifically, Frederic Remington (who knew his share of white, Western traders) used it to describe a situation in which he was angry at the orders given to him by his superiors.

      In short, the term is (a) not negative, (b) apparently had only an indirect connection to Native Americans when it was coined, and (c) pretty quickly lost whatever nominal association it DID have with Native Americans.

      • paperlions - Jun 20, 2013 at 10:09 AM

        I think it implies inappropriate action, not unexpected.

        First time in print has little to do with origins…and the implication that disobeying “superiors” is “going off the reservation” is inconsistent with your second point. Any etymological evidence I can find all point to “off the reservation” being both an inappropriate and dangerous place for a native american to be.

      • downwithespn - Jun 20, 2013 at 10:24 AM

        1. You have what you think, but I have an actual definition. One from the Oxford English Dictionary, which is regarded as the definitive reference work on the language.

        2. I did not use the Remington reference as evidence of origins. I used it as evidence that the term was quickly disassociated from Native Americans, to the extent it ever was associated with them. Reservations were first authorized by Congress in 1851. Even if you assume a fairly quick progression of events, the term “off the reservation” surely could not have entered popular usage much earlier than 1870 or 1875. And by 1898, it was already being used in non-Native American contexts. This is rather a different timeline than, say, a more offensive term like ‘Redskin.’

        3. You are also wrong that my second and third points are inconsistent. First of all, you actually mean my FIRST and third points are inconsistent. Second, Remington disliked the orders he was given, and so decided to act independently–to do his own thing. His usage is entirely consistent with the OED definition I provided.

        4. In addressing your point, I provided a great deal of specific evidence–a definition (with source), as well as a brief history of the term and its usage. Consistent with proper academic protocol, you could easily “check my work.” That is to say, you can go look at the OED yourself, and you can easily find the Remington article too, if you want (it’s in Google Books). You, on the other hand, have talked about “what you think” and made vague allusions to “any etymological evidence I can find.” I would submit that you should provide specifics, ideally with sources, as I have. Failing that, I would submit that you should consider the possibility that perhaps you are in error.

      • pauleee - Jun 20, 2013 at 10:36 AM

        I think the clock is slow.

        //sorry

      • stlouis1baseball - Jun 20, 2013 at 10:48 AM

        ESPN:
        I appreciate you taking time to post a well written, articulate response with specific data backing up your thoughts and opinions.

        As someone who was immersed in the Native American culture for quite some time I can tell you I wholeheartedly disagree. Using the term “of the reservation” very much implies one has “lost his/her grip.” As in…they went “cuckoo for cocoa puffs.” “Off their rocker” so to speak. I could also include a few more off-color slang terms but I worry I might be banned due to the gentle sensibilities of our HBT brethren.

      • dluxxx - Jun 20, 2013 at 11:05 AM

        Speaking as someone who’s sister is half Native American, if you told her she had “gone off the reservation” I’d punch you in the throat. And she probably would too.

      • paperlions - Jun 20, 2013 at 11:16 AM

        No, you don’t.

        Every online source defines the term as “To leave a reservation to which one was restricted.” And sources the origin in reference to native Americans that have left the reservation without permission.

        Feel free to provide actual evidence of your alleged evidence.

        Personally, I love when white people try to justify continued racism by denying the origin of commonly used terms. This is just like people claiming that “Redskins” was a term originated to honor a particular member of the organization, when the term was coined by one of the biggest bigots in the 20th century.

      • stlouis1baseball - Jun 20, 2013 at 11:42 AM

        What dluxxx said!

      • dluxxx - Jun 20, 2013 at 12:06 PM

        Also, considering your source is the Oxford English Dictionary I think you may be off base. The OED is written by an English professor. As it stands, in England (or the UK) you would probably have a leg to stand on. Their interpretation of the term “off the reservation” would most likely not have the same connotations.

        However, here in the United States, where the Native Americans were badly mistreated and ostracized by “pioneering” Angelo Saxon decedents, a term like “off the reservation” still has negative connotations. There are still reservations in the United States, and most aren’t the kind with casino money rolling in – not that those are always better off either. They’re often the equivalent of living in a 2nd or 3rd world country.

    • stlouis1baseball - Jun 20, 2013 at 10:32 AM

      Wait…
      I thought “Paddy Wagon” was an old school term for a Law Enforcement Vehicle used to pick up several people at a time.
      Nevertheless…your point about using the “reservation” term is on point.
      Specifically…as an “up in arms”…over the top…”oh the humanity kind of guy” C.C. is inconsistent at best…if not blatantly hypocritical in this instance.

      RAGE!

      • Craig Calcaterra - Jun 20, 2013 at 10:46 AM

        I’m an “up in arms, oh the humanity” kind of guy because I think racial caricatures are bad? OK.

      • stlouis1baseball - Jun 20, 2013 at 10:50 AM

        But that’s just it C.C. I simply do not agree with your take on Chief Wahoo.
        In this case…you are fabricating it (in my opinion). So…yes.

      • paperlions - Jun 20, 2013 at 11:08 AM

        Well, yeah, Paddy Wagon is used to mean that…but, “Paddy” is used in this context to refer to the irish (for whom Padraic (i.e. Paddy) is a common name). Thus “Paddy Wagon” refers to a vehicle used to round up a group of drunk brawling irish…not criminals in general.

      • paperlions - Jun 20, 2013 at 11:18 AM

        Sorry man, but there is no way that CW is not an offensive racist caricature.

    • stlouis1baseball - Jun 20, 2013 at 12:10 PM

      We don’t agree on CW my Man! But that’s okay. Hell…a couple of years ago we disagreed on seemingly everything (with the exception of our Cardinals fandom).

  4. sycophanticide - Jun 20, 2013 at 9:56 AM

    So are you saying he Munsoned it?

  5. gmjerry - Jun 20, 2013 at 10:03 AM

    If you care about Chief Wahoo and other Indian stuff, you should probably avoid using the term “off the reservation” . Anyway there is no right or wrong legal argument. Even the weakest argument can be accepted by a judge and the case could go forward.

    • Craig Calcaterra - Jun 20, 2013 at 10:22 AM

      “Anyway there is no right or wrong legal argument. Even the weakest argument can be accepted by a judge and the case could go forward.”

      No, there are wrong legal arguments. There are also wrong legal decisions by courts. “Successful” is not a synonym for “correct.”

      • thermalito - Jun 20, 2013 at 12:57 PM

        Let me guess. Decisions you agree with are always the right ones while the ones you don’t like are always the wrong ones correct?

      • Craig Calcaterra - Jun 20, 2013 at 1:19 PM

        Not in the slightest.

  6. Roger Moore - Jun 20, 2013 at 10:27 AM

    Color me skeptical about the Roberts Court’s willingness to overturn Federal Baseball. The Warren Court turned down a chance to do so in Toolson on stare decisis grounds, and incidentally gave this layman a very nice education on exactly why stare decisis was a reasonable decision even if it created a legal anomaly. I have a hard time believing that the Roberts Court, which is generally friendly to big business, would overturn Federal Baseball if the Warren Court wouldn’t.

  7. oakdave - Jun 20, 2013 at 11:10 AM

    Would MLB be able to get this dismissed on the very real probability that they would lose millions in revenue, in Oakland, over the next 3-5 years if this case moves forward? There are already disillusioned fans who boycott because of Fisher/Wolff. The A’s have been getting huge revenue sharing checks and their desire to move the team to SJ, has emptied the stadium and other teams’ wallets.

    Secondly, Wolff who was informed SJ was “off the table” when he purchased the franchise has used the “lack of a doable site” as an excuse to pressure Selig to open SJ. Could MLB show that their are potential sites in Oakland (or elsewhere in their territory) as cause to dismiss?

    Lastly, has anyone researched the claim that the MLB constitution has expired (12/31/12) and not been renewed? Is that even possible and what would that mean for this suit?

    • thermalito - Jun 20, 2013 at 1:00 PM

      The threat to move to San Jose emptied the A’s stadium in Oakland? Was it ever full? Seems to me Oakland has pretty much never supported the A’s regardless. Whether or not MLB loses money is completely irrelevant as to whether the case will move forward or not. And given the fact the courts have been extremely unfriendly to sports monopolies in recent years I’d say there’s a good chance it will go forward.

      • oakdave - Jun 20, 2013 at 2:58 PM

        yes, the “threat” as you say. Wolff is constantly complaining about the City of Oakland and the venue. This has had a negative effect on attendance. The SF Giants had similar attendance figures as the A’s, when they were at Candlestick Park. It took a new venue for the Giants’ numbers to reach the current level.

      • peoplesrepublic0fdabayarea - Jun 20, 2013 at 3:23 PM

        Seasons in which avg attendance in Oakland (Coliseum) trumped avg attendance at SF (Candlestick, AT&T):

        1970: Oakland 9,609, SF 9,145
        1972: Oakland 11,888, SF 7,997
        1973: Oakland 12,355, SF 10,299
        1974: Oakland 10,441, SF 6,420
        1975: Oakland 13,278, SF 6,456
        1976: Oakland 9,697, SF 7,739
        1981: Oakland 23,928, SF 7,806
        1982: Oakland 21,426, SF 14,827
        1983: Oakland 15,987, SF 15,451
        1984: Oakland 16,707, SF 12,365
        1985: Oakland 16,477, SF 10,107
        1988: Oakland 28,239, SF 22,041
        1989: Oakland 32,929, SF 25,428
        1990: Oakland 35,805, SF 24,389
        1991: Oakland 33,500, SF 21,450
        1992: Oakland 30,792, SF 19,272
        1995: Oakland 16,310, SF 15,327

        = 17 past 32 seasons (obviously none since AT&T opened, and Coliseum was expanded)

  8. billybawl - Jun 20, 2013 at 11:43 AM

    Sincere question: is anyone aware of an analysis of the lawsuit by a disinterested antitrust lawyer?

  9. daveitsgood - Jun 20, 2013 at 11:58 AM

    Maybe Craig can answer this, because I honestly don’t remember enough of the details, but what are the differences in this suit vs Tampa Bay’s back in ’92 with the Giants? Was it because Lurie had already agreed to sell the team? If so, because the owners voted down the sale, does that mean that if anytime the other owners vote down a sale or move, can the rejected and affected party bring a similar type of suit?

    • thermalito - Jun 20, 2013 at 1:01 PM

      Considering baseball’s anti-trust exemption is on such shaky legal ground to begin with I’d say yes.

    • Craig Calcaterra - Jun 20, 2013 at 1:25 PM

      Yes, that was the jist of the suit. A deal was done, MLB put the kibosh on it. A trial court said in an intermediate ruling that violated antitrust laws. It was settled, however, before the case as decided on the merits.

      As for other sales: you’ll note that deals aren’t done before MLB approval anymore. Owner of team wants to sell. He does not enter into an agreement with a purchaser to sell, however. He submits possibilities to MLB, which approves or disapproves. Then, in just about every instance, the old owner enters into a deal with an approved person. There have been no cases in recent history where the owners says “nah, I’m gonna sell to that guy over there instead.”

      This is where standing comes in. Mark Cuban, for example, can’t sue MLB because the owner never agreed to sell to him. The owner decided to sell to someone else. Now, sure, he decided because MLB told him who he could sell to, but he chose to go along with that.

      Here if the A’s wanted to move to San Jose they could’ve entered any number of binding agreements with San Jose to do it. They haven’t, though, because they’ve been unwilling to go against MLB’s wishes. It’d be a different case altogether if the A’s and San Jose were down the line — like the Lurie group was with Tampa Bay — and MLB stepped in and said no.

  10. peoplesrepublic0fdabayarea - Jun 20, 2013 at 4:43 PM

    Craig, any thoughts on Stanford sports economist Roger Noll’s opinion stated here:

    http://www.fieldofschemes.com/2013/06/20/5373/noll-san-jose-as-lawsuit-isnt-as-crazy-as-you-think/

    ■San Jose does potentially have standing to sue here, thanks to the $50,000 option that A’s owner Lew Wolff paid the city for the stadium site. In any case, says Noll, “The issue is not really standing, but whether the business interest of a plaintiff is speculative (based on business that was not and may never be done). Surely this will be part of a motion to dismiss, but the existence of an agreement and detailed stadium plans strengthens San Jose’s case.”

    ■A quick dismissal on antitrust exemption grounds is unlikely, given that a case like this has never been litigated before, and “standard legal doctrine is that antitrust exemptions are read narrowly, applying only to issues that are litigated in that case.”

    ■This is more than a federal antitrust case: There are also tortious interference claims, as well as state antitrust claims. It’s the latter where it gets really interesting: Since the A’s move would be an intrastate one from Oakland to San Jose, “the basis for
    the complaint avoids the [Supreme Court's] Federal League ruling [in 1922] that MLB was not engaged in interstate commerce.”

    ■While I (and others) have been quick to note that leagues can do whatever they want with their franchises, just as McDonald’s can, a court may still require them to show an actual business reason for doing so, to prove that they’re not being capricious. “The interesting point here is that the amount of competition in the metro area will stay the same (two teams), although one (the A’s) would be a stronger, more effective competitor if located in a bigger, wealthier city within the area,” says Noll. “MLB will have a hard time making the case that the interest of the league is served by preventing the A’s from moving further away to a better location, which must be the rule-of-reason business justification that will come into play if the court decides that blocking the move caused harm to competition.”

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