Note: So the following story has been a difficult one to write for a few reasons. 1) The unique nature of this case means that it’s difficult to account for all of the potential arguments/outcomes, unlike in the NASL/USSF anti-trust case. 2) There are at this point many unanswered questions regarding the underlying facts. 3) While I’ve reviewed the relevant statutory framework, I practice law in Washington State, not Ohio. So this has been a good lesson for me in making sure that I don’t come to premature conclusions about what will happen in this case. With that in mind, I hope you enjoy the story.
In my previous story on the “Notice” issue, I listed some scenarios whereby the parties would argue about when notice was provided by Precourt Sports Ventures/Major League Soccer that they would cease playing at Mapfre stadium, pursuant to the requirements of the Modell law. Yes, I know that PSV/MLS are reserving the right to challenge the validity of the law, but let’s put that aside for the moment.
Based on the letter provided by PSV/MLS on March 16, 2018, I posited the theory that PSV/MLS would argue that notice was given on either October 17 or November 15, 2017. In regards to the March 16, 2018 date, I wrote the following:
This is by far the easiest one to argue. That is the date that PSV/MLS sent a letter to the local government providing notice of intent to cease playing at Mapfre, and requesting bona fide offers from local groups. Doesn’t get much more official than this, and will be used as the default option in the event the other dates do not apply. It’s important to note that while PSV/MLS sent this letter on March 16, they specifically reserved the right to challenge all provisions of the law, as well as assert any other defenses or arguments. But by any reasonable measure, this satisfies the statutory requirement.
Yeah, so about that. The following isn’t to say that March 16 *won’t* be the date as determined by the court (or either of the other dates for that matter) that notice was provided to the City/State, but it sounds like they won’t be stipulating to that timeline for purposes of the lawsuit.
Uh, what? So I totally missed this when I wrote my story Friday. Now it’s possible this is just posturing. Perhaps they just want PSV/MLS to send them an official letter stating they aren’t going to play at Mapfre, which will make PSV/MLS look even more cruel and heartless. Or maybe it’s something more.
The Modell law does not specify how notice is to be provided if PSV intends to cease playing at Mapfre, beyond simply requiring that the “owner” of the team “Gives the political subdivision in which the facility is located not less than six months’ advance notice of the owner’s intention to cease playing most of its home games at the facility…”
That’s it. Since this law has never been tested, my guess, given that we are talking about real property and leases, is that a Court would use some common sense and plain meaning on the definition of notice, and potentially analogize this to landlord/tenant cases. Now, that’s by no means certain, but using that as our premise, the next best thing is to probably look at the lease, which has a fixed term of 25 years, with an option for an additional 25 year term. Here we’re taking about PSV effectively defaulting on his obligation, and no lease specifically provides for the proper way to notify someone you are intending to breach the contract. So what does it say about notice generally?
So maybe we’re dealing with two issues here: First, the City may be arguing that the notice wasn’t provided to the proper political subdivision, as well as to the State (which this letter wasn’t as far as we know) and two, the notice isn’t sufficient. The first point doesn’t seem particularly compelling; all they would have to do is forward a copy of a notice to the appropriate state agencies, and in any case, wouldn’t any violation on that issue would seem to be subject to remedies provided for in the lease, not the Modell law? That’s an open question. But since the statute *does* require notice, what about the letter itself? The document that was sent on March 16 was legalese at its finest/worst.
Notice anything missing? How about a statement directly affirming that PSV intends to cease playing games at Mapfre. How about a date by which they intend to cease playing games there? As it is, this statement could apply anywhere from tomorrow until the lease ends in 2024. In theory, PSV could simply be providing the City with advance notice that they’re not planning to exercise the option for an additional 25 year lease. The introductory statement from PSV/MLS was just as mealy-mouthed.
“[M]ay cease”? The lawyers for PSV/MLS know better than this. Will a court hold up a statement that a party “may” do something as a definitive statement? I’m skeptical on that front. And that doesn’t even address the “parallel paths” comments from Don Garber, which may contradict the argument anyway. It’s entirely possible that PSV makes a deal with Austin and decides to play in Columbus for another season or two (or five)! We have no idea at this point. For all of the concerns that have been raised regarding the potential “vagueness” of the Modell law, the “notices” from PSV/MLS (if they’re referring to 10/17 statement, 11/15 meeting/statements or 3/16 letter) are no clearer.
Now, I can guess why PSV/MLS did this: They don’t have a deal with Austin yet, so they are hedging their bets if they have to come back to the city with their tails between their legs. The league also likely doesn’t want to suffer the public relations hit by announcing they’re leaving Columbus until they have to (that PR ship has sailed, methinks). But that kind of thing isn’t going to go over well with the Court if they try to argue that notice has been provided.
So I think I’ve basically changed my mind from my other story on the March 16, 2018 date. In fact, I think I’ve changed my mind on any possible dates through the writing of this story. I think it’s possible that a Ohio court (home field advantage notwithstanding) could find that PSV/MLS have NOT complied with the notice requirement as provided for in Ohio Revised Code Section 9.67. Especially as to the 10/17 and 11/15 dates, we have non-specific statements that weren’t delivered to the relevant parties.
It should be noted (and I think I mentioned it before) that the letter at least implies that PSV/MLS may make some sort of “constructive notice” argument. Basically, by all of the actions undertaken by PSV since this issue came to light, that the plaintiffs “knew or should have known” that PSV was going to cease playing at Mapfre. I dismissed that previously, but as I said, researching all this has provided me a nice reality check as to coming up with definitive conclusions. At least until we have more information and look at the legal arguments the parties are going to make, that is.
One thing I can say is that this is mainly important in the context of getting past the six-month “waiting period.” I assume the main concern for PSV/MLS is having an extended open period whereby multiple local buyers can continue to come forward, until a package surfaces that a court will find acceptable, and thereby force a sale (assuming the validity of the lawsuit).
For example: Let’s assume the prospective buyers referenced in the letter published by Mayor Ginther fall through tomorrow. The sooner the six-month period is over, the better for PSV if he is set on moving to Austin, since even if a legitimate local buyer comes forward with a bona fide offer in say ten months, he could refuse it if the six month period has expired. And once again, this all depends on whether the Modell law itself is found to be constitutional. If it isn’t, then all bets are off.