February 25, 2012; Phoenix, AZ, USA; Oakland Athletics owner Lew Wolff watches a bullpen session during spring training at Papago Park Baseball Complex. Mandatory Credit: Kyle Terada-USA TODAY Sports

Lawyers Being Dumb, Cities Being Dumber: San Jose’s Lawsuit, Part One


One of the disconcerting things you learn in law school is that most lawyers, like most people, are not particularly brilliant.  The next thing you learn, if you’re paying attention at all, is that the law isn’t really an academic discipline.  Or a science.  Meaning, law does not draw reasoned conclusions from established fact.

Rather, on the whole, the law tries to construct persuasive arguments that carry out sound social policies.  Sometimes the arguments make sense.  Sometimes they don’t.

Take for example, Major League Baseball’s (MLB) antitrust exemption.

In 1922, the United States Supreme Court held that the Sherman Act, the primary bit of law used to outlaw monopolies, did not apply to Major League Baseball.  In so doing, the Court ruled that MLB was not really involved in interstate commerce.  We lawyers have a phrase for such cogent reasoning.  In Latin, it reads, “We are the Supreme Court.  We really like baseball and we can do as we like.”

MLB’s antitrust exemption makes no legal sense.  But it exists.  And in 1952 and 1972, the Court reaffirmed its earlier ruling.

So what’s the implication of that?  Well, generally, it’s that it will do you no good, no good at all, to deny this basic truth.  All lower courts, to large extent, are bound by the Supreme Court’s interpretation of federal law, including the Constitution.

So what’s San Jose chance of prevailing in the law suit it filed in June, demanding, among other things, that a federal district court order that MLB operates in violation of the Sherman Act (among other claims)?

Zilch.

Unless I miss my guess, no federal court shy of the Supreme Court will take a swipe at overturning 90 years of well-settled law.  I doubt the Supreme Court will be interested in taking review of the case if it made it that far.

The Court has answered this question.  Three times.   Congress has had a century to pass a law applying the Sherman Act to MLB.  It hasn’t.  That’s about as clear an indication of Congressional intent as you’re likely to find.

Sure, the Court sometimes messes with Congress.  But baseball, although important to you and I, is not where the Court wants to fight a battle with Congress, the august body that controls the budget for all federal courts.

But what about the state law antitrust claims?  Well what’s San Jose’s counter for this morsel:

“as the burden on interstate commerce outweighs the states’ interests in regulating baseball’s reserve system, the Commerce Clause precludes the application here of state antitrust law.”

That’s the Supreme Court in 1972.  It means that states are not allowed to apply state antitrust law to MLB.

So what’s left?  Tortious interference with contract, tortious interference with prospective economic advantage, blah, blah, blah…  The problem with those claims?

First, what contract has MLB interfered with?  The only contract between the A’s and the City of San Jose is an option to buy a parcel of land.  The A’s are still free to buy that parcel.  Nothing MLB has done, or will do, will stop them.  San Jose is asking the court to rule that MLB has interfered with a contract that does not exist, and if it did exist, would be precluded from existing by 90 years of well-settled law.  Huh?

Second, to establish tortious interference with prospective economic advantage a plaintiff must clear an enormously high bar.  You must prove that because of the act of another, you lost money you were sure to have had from another person.  Not might have had.  Not probably would have had.  Money you were sure to have had.

Please remember, even if San Jose was free and clear to get the A’s, we are a loooonnnnggg way from the A’s moving there.  No stadium has been built.  At best, the A’s are years from playing a game in San Jose.  This claim is roughly akin to a contest entrant whose entry is lost in the mail.  So he sues the Post Office for his ephemeral lost Cadillac.  It’s going nowhere.

Like the rest of San Jose’s lawsuit.

In Part Two:  Where Lew Wolff, San Francisco, and the Oakland A’s fit into this.

Tags: A's Move To San Jose Featured Lawsuit Lew Wolff Oakland Athletics Popular

  • Steven

    This article is deeply flawed from a legal standpoint. Nothing is absolute.

    • Rob Ferrier

      Read the complaint. And read the Supreme Court decisions, especially the Curt Flood case. The NFL is a completely different animal. Apples and oranges.

      This is a lawsuit that never should have been filed.

      • Steven

        What overly opinionated judge tosses out a high profile case on standing alone? Very few. Why? You’re essentially asking the judge to relinquish power and shut the fuck up prior to discovery, essentially, prior to him knowing the facts. An overly opinionated person will give their opinion once the facts are known.

        • rmferrier

          Well, honestly, then our experiences with district court judges have been very different. Most judges I know or have appeared before, generally look to get rid of any case in their docket they can. Because they have enough to do. I don’t see a district court judge drawing a line in the sand over baseball. Espeically in a case that is so deeply flawed. And standing is the very least of the plaintiff’s problems.

          And yes, a 12(b)(6) motion is asking a judge to get rid of a case before it begins. I can’t remember where it appears, but there’s an interview with a San Jose concilman, also a lawyer, who basically admitted the anti-trust claims were likely to be dismissed. He pinned his hopes on the state law claims. Which are deeply flawed, but might escape dismissal.

          By the way, I plan to address the standing issues at greater length in the next post. And the failure to join necessary parties. And the fact that the Athletics apparently decided to pass on the suit. Probably because they have good laywers that they actually have to pay.

          Who knows? Maybe you’re right. Anything can happen, right? Thanks for reading and posting, and FYI, watch the f-bombs. I personally don’t care, but they’re pretty harsh about them around here.

        • Rob Ferrier

          Well, honestly, then our experiences with district court judges have been very different. Most judges I know or have appeared before, generally look to get rid of any case in their docket they can. Because
          they have enough to do. I don’t see a district court judge drawing a line in the sand over baseball. Espeically in a case that is so deeply flawed. And standing is the very least of the plaintiff’s problems.

          And yes, a 12(b)(6) motion is asking a judge to get rid of a case before it begins. I can’t remember where it appears, but there’s an interview with a San Jose councilman, also a lawyer, who basically admitted the anti-trust claims were likely to be dismissed. He pinned his hopes on the state law claims. Which are deeply flawed, but might escape dismissal.

          By the way, I plan to address the standing issues at greater length in the next post. And the failure to join necessary parties. And the fact that the Athletics apparently decided to pass on the suit. Probably because they have good lawyers that they actually have to pay.

          Who knows? Maybe you’re right. Anything can happen, right? Thanks for reading and posting, and FYI, watch the f-bombs. I personally don’t
          care, but they’re pretty harsh about them around here.

          • Steven

            The case does face an uphill battle, I completely agree with you on the merits. It could be tossed? My point: High profile cases with lots of media coverage are a little different than typical everyday routine minutia judges have to rid themselves of. It depends on temperament, really.

          • Rob Ferrier

            That’s a fair point. You’re right. It’s a high profile caws, and probably more interesting than what usually hits the docket. Did you see the MTD filed yesterday? A little larded with the usual clunky adjectives so common to BigLaw, but pretty compelling nonetheless.

          • Steven

            I’ve been doing some more reading and here is how I feel as a person, not as an attorney:

            First, no one is exempt from a law in perpetuity. If I was a corporation and did something to cause a trial, and the judge ruled I was exempt from a particular law, it would apply to facts in that specific case. The corporation is not exempt forever of the same law. So the MLB “exemption” has limits to specific facts in individual cases and does not exist as a whole.

            Second, the MLB “exemption” came about because it was deemed “entertainment” and not commerce. In a separate case, a court found baseball to be commerce after all. So having a court toss the SJ case on grounds of stare decisis when the underlining precedent has been contradicted in previous cases… seems… bold.

            Third, MLB is admitting they have violated anti-trust and “restraint of trade” laws by asking for “exemption.” How can you be exempt from something you do not do?

            Forth, I do not believe SJ has the right attorney for the case. He fails to put together two sentences I enjoy reading, MLB attorneys are much better writers. However they suffer from the “penny loafer” syndrome.

          • Rob Ferrier

            Oh, I don’t think the jurisprudence makes any sense. But it’s there. Like an iceberg in Lake Merritt. (How’s that for terrible metaphors.) But the law is sometimes not about logic. I think we all know that. But beyond the SC opinions are those by Circuit Courts and district courts alike which have already rejected the arguments San Jose makes here. And their contractual arguments are just bizarre. This is about ego, and the mayor getting snubbed by Bud six months ago when he demanded a meeting.
            As a person, not a lawyer, I think baseball teams are public trusts, not toys. Especially when they’ve been in a place for half a century. Owners are caretakers and trustees. The A’s belong in Oakland. And now that there are serious public proposals for stadiums and genuine offers of ownership, Lew should go jump.
            The fact that the courts have to waste more time so some overpaid partner can overwork some associates and preen for the media just adds to the anger. I hate this crap.

  • Carl Elftman

    Just think if the blue ribbon had made decsion by now we would or close to having a stadium done.

    But they are still trying to get their heads out of Bud’s ass that it will never be solved. So the poor Giants will be happy and run the A’s out of town again.

    • Rob Ferrier

      I just wish that this man who obviously has little to no interest in baseball would just sell the team. It’d give him more time to watch soccer.