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Selig's uphill battle Posted: Friday November 30, 2001 2:45 PMUpdated: Wednesday December 05, 2001 12:12 PM
As his plans for contraction crumble around him, you have to wonder about Bud Selig. Did he actually think this strategy would work? Did he honestly believe that he and his baseball cartel could destroy two teams without attracting a bit of attention? Selig insists that the lords of baseball will somehow, someday shut down two teams despite the litigation, the union arbitration and the Congressional action that is mushrooming even before the two franchises doomed to extinction are officially designated. But there are powerful factors that will kill the idea for the 2002 season and make it unlikely in 2003 -- or ever. Good luck, Bud. The court injunction requiring the Minnesota Twins to play the 2002 season in the Metrodome is typical of the rude welcome contraction will receive from judges and politicians in cities where teams are in jeopardy. Elected officials simply do not want to explain to voters why their club was allowed to disappear. Hennepin County District Court judge Harry Crump's decision is now being reviewed in the higher courts of Minnesota, but I do not expect it to be reversed. If Major League Baseball and its lawyers take the case to the Supreme Court of Minnesota, they will find themselves arguing before Justice Alan Page, the Hall of Fame defensive tackle and a stalwart of the NFL Players Association. Will Page be sympathetic to owners or to players? Will other justices defer to Page on a sports issue? Good luck, Bud. Let's take a look at some other factors that will be at hand in litigation and legislation over issues raised by contraction. Here is how each will work against Selig and his scheme: Critical mass: This is the most fashionable phrase among litigators these days. It reverses the old idea that great commercial enterprises are able to outspend their antagonists and win wars of attrition in the courthouse. The concept originated in the recent litigation against Big Tobacco. For generations in courts all across the U.S., tobacco companies defended themselves successfully against smokers who claimed cigarettes had caused their health problems. The tobacco companies won case after case and never offered a dime in settlement of any claim. But then the attorneys general in a few states, starting in Mississippi, began suing Big Tobacco using the same theory but on a new scale. The state attorneys general wanted the tobacco companies to pay medical bills resulting from smoking. When just one or two states were making the claim, the tobacco companies could continue to resist, fighting the litigation in their usual war-of-attrition style. But when state after state joined the fight, the onslaught against Big Tobacco reached critical mass. Each state hired a law firm working on a contingent fee (no cash outlay for the state), and Big Tobacco realized that it could not afford to fight the battle in 50 courts. A massive settlement soon was under discussion. The lawyers now preparing contraction lawsuits against Major League Baseball are thinking about critical mass. The attorneys general in Florida and Minnesota are already involved. Contingent-fee lawyers will join them in their attack, filing suits on behalf of fans, taxpayers, businesses hurt by contraction and others. It will not take much to reach the point of critical mass on contraction. The owners persist in their dubious claim that they are suffering financially. It will be hard to make that claim when they are paying lawyers huge fees across the board to defend contraction. It will also be hard for Selig to convince owners to pay their share of the fees as the litigation grows in magnitude. Good luck, Bud. Dilatory tactics and techniques: Every litigator takes pride in his mastery of dilatory tactics and techniques. Delay is a work of art for these guys. When a lawyer is accused of a dilatory maneuver, it is a badge of honor. Having the outcome assured by a few stalls in the courthouse is a lawyer's dream. Every attorney in every contraction case will know that a few delays will put Major League Baseball in a position where it will have to postpone contraction for at least a year. The owners' attorneys will yell and scream, but there will be little they can do. The finest dilatory tactics are not appealable. They are beautiful to behold, and often they work a lot better than taking chances on the substance and merits of a case. Good luck, Bud. Judges and baseball: In his opinion requiring the Twins to play the 2002 season in Minnesota, Judge Crump did what most judges do when they hear a baseball case: He felt obligated to contemplate the joy of the game. Crump wrote: "Baseball is as American as turkey and apple pie. Baseball is a tradition that passes from generation to generation. Baseball crosses social barriers, creates community spirit and is much more than a private enterprise. Baseball is a national pastime." He turned sentimental in mentioning "Minnesota legends" such as Rod Carew, Tony Oliva, Harmon Killebrew, Kent Hrbek and Kirby Puckett . He was nostalgic about World Series wins in 1987 and 1991 and remembered Homer Hankies and bobblehead dolls. Crump is not the first judge to attempt a poetic turn in a baseball case. Another Minnesota native, Justice Harry Blackmun of the Supreme Court of the United States, tried it in the Curt Flood free agency case. In ruling against Flood in the union's first attack on the reserve clause in 1972, Blackmun (known as one of then-President Richard Nixon's "Minnesota Twins," along with Chief Justice Warren Burger ) opened his majority opinion with an ode to baseball that became a standing joke among lawyers and scholars. After a description of the history of the game, Blackmun offered a list of 90 players "who have sparked the diamond and its environs and have provided tinder for recaptured thrills, for reminiscence and comparisons, and for conversation and anticipation in-season and off-season." The list included the obvious such as Babe Ruth and Ty Cobb and went deep into baseball arcana for Germany Schaefer, Wahoo Sam Crawford, Stuffy McInnis and Eppa Rixey. The listing of baseball greats became an issue among the justices as they decided the Flood case. Thurgood Marshall insisted that black players be included (they were added), and others sent memos debating the merits of including Camilo Pascual, a Washington favorite, on the list (he was not included). Blackmun even included the text of Franklin Pierce Adams' poem Tinker to Evers to Chance. Good luck, Bud. Bush brothers factor: President George W. Bush understands the role of baseball in a community better than any president in history. As the managing partner of the Texas Rangers, he voted against the dismissal of Fay Vincent as commissioner, the lone dissenting vote among ownership. And it was a ballot that symbolized Bush's personal belief that baseball was more than a profit-seeking enterprise. If he were still a team owner, it would be safe to assume that he would have voted against contraction. President Bush probably would support the relocation of a franchise (the Montreal Expos, for instance) to a newly constructed stadium -- maybe a memorial to the war on terrorism -- in Northern Virginia. How much resistance will the lords of baseball offer to a president on a mission? If they can't eliminate the Expos, the owners won't be able to kill any team anywhere. Meanwhile, brother Jeb Bush is up for re-election as governor of Florida. Even Janet Reno thinks she can beat him. Believe me, Jeb Bush does not want a Florida franchise dismantled on his watch. Politicians want to keep the teams they have or bring new clubs into their communities. The Florida franchises have significant problems, particularly in establishing a fan base, but Florida politicians would have larger problems if those teams were eliminated. Give up, Bud. It's over. Sports Illustrated legal analyst Lester Munson regularly holds court on
sports law and business matters on CNNSI.com. The opinions expressed here are
solely those of the writer.
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