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


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

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)?


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.