I had a feeling this was coming. Nothing about the action of defendants has indicated they were going to play particularly nice. In this case, PSV/MLS have decided that the ruling (which I understand came as a shock to them, and left them very upset) is a bridge too far. We now have confirmation that they have filed a notice of appeal to the 10th District Court of Appeals in Ohio.

Screen Shot 2018-05-15 at 9.23.49 AM

The two points they are arguing: 1) The judge erred in granting the six-month tolling period and 2) Setting up a procedure for allowing bona fide purchasers to make offers (and by extension ordering a process for discovery) mandates compliance with ORC 9.67, which the defendants argue is unconstitutional.

Screen Shot 2018-05-15 at 7.34.17 AMThe briefing on this issue isn’t due until 15 days after the notice is sent (guessing appellants will take all of that time), so I can’t really analyze their reasoning yet. However, the judge’s ruling on point “I” was based on equitable factors:

Screen Shot 2018-05-15 at 8.23.40 AM.png

So we can image how PSV/MLS will handle that. On point “II,” expect an appeal to be centered on arguing that there is no statutory basis to set up the process the judge did to handle a potential sale of the team.

Screen Shot 2018-05-15 at 8.29.00 AM

Procedurally, PSV/MLS may run into some issues. This appears not be a final appealable order as defined by the Ohio local rules, which is what you need to appeal generally. That doesn’t stop PSV/MLS from making the argument of course, but I’m not seeing a statutory basis for this appeal, especially given the grounds upon which they are appealing. The only real crack in the door is based on a “provisional remedy,” and I don’t see that the ruling here by Judge Brown qualifies, unless PSV/MLS are going to argue that in effect, he granted a preliminary injunction. Which I suppose is possible.

The options available to appellees (plaintiffs) seem to range from fighting this on the merits to moving to dismiss the matter.

As to what the plaintiffs do while fighting all this…good question. My guess is that they ask Judge Brown for an extension of the tolling period (is a toll of a toll a thing?), assuming that PSV/MLS are not going to comply with the original order pending this appeal. A full-on preliminary injunction could be sought I suppose, but given that Judge Brown reserved the right to modify this order in just about every way, that doesn’t seem particularly necessary.


  1. Appellate courts usually don’t like jumping into the middle of a case, preferring to take it up after completion of the trial. This is awfully early for an appeal and it seems like a sure loser. The first grounds listed is laughable. The second is part of fleshing out the Modell law, something the courts will have to do if they uphold it.

    What MLS/PSV really object to is complying with the Modell law but it’s a valid law on the books until they can find a court to overturn it. That won’t happen in an interlocutory appeal, so they’ll be back before Judge Brown pretty soon.


    • Most likely. I think they have just about no chance on the toll of the six-month notice of even surviving the MTD. On the dxy, they have better odds on surviving the MTD, but they’d still have to win the appeal.


  2. I’m not an Ohio lawyer, but fundamentally, they’re arguing the court violated the Constitution in a few different ways by the order. If the court denied the motion to dismiss, we’d recognize that it was valid interlocutory appeal (that the court may still decline) because it implicated constitutional concerns, right? I wouldn’t lose any sleep over that part of the brief if I was PSV/MLS.


  3. Matt, what MLS/PSV is claiming is that the judge erred in a couple of ways.

    1 That he had no basis to toll (stop the clock) on the 6 month notice provision in the Modell law. IMO that claim is a sure loser before the court of appeals since Ohio law allows for tolling in various circumstances and using it here isn’t clearly out of bounds.

    2 That the judge invented a process, not spelled out in the Modell law, for arranging a sale of the team. Again, the Modell law is short on details but does say locals get an opportunity to buy the team. What the judge did seems consistent with the law and so again not clearly erroneous.

    What MLS/PSV want is a finding that the Modell law is unconstitutional without having to comply with it in any way, including pre-trial discovery. They may win a ruling overturning the Modell law but it’s not likely to happen before the trial.


    • Whoa whoa whoa, when did “clearly erroneous” become the standard? These issues are ultimately going to be resolved de novo. Plus, you’re reaching the issues themselves. That’s the standard of review – not the standard of finality (which, is a question of law, and also de novo…)

      But on the substance, I’m absolutely stumped by your premise that “[overturning the law] won’t happen in an interlocutory appeal.” Challenging preliminary remedies when the constitutionality is at issue is one of the main purposes of “non-final” appeals. Here, MLS says that the toll facially violates the dormant commerce clause. No one says tolling is beyond the court’s powers or the statute. There is no factual issue to resolve. And this argument points to why both parties may want an early appellate ruling on that issue: the tolling period could be struck as violating the dcc but the rest of the suit continues. Columbus should start thinking up reasons they need a fact record before reaching the dormant commerce clause issues presented by that ruling in a hurry.

      How about I put it this way: a court orders you to turn over documents that you believe are protected by attorney-client privilege. We’ll supposed there is a statute that authorizes this too and the judge’s ruling is correct under that statute. You’re both telling me you wouldn’t file an appeal right away because…the judge didn’t abuse his discretion?


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s