Fans of the Oakland A’s are furious, and they have a right to be. They also have a remedy.
A’s owner John Fisher has run the team into the ground and now is attempting to move it to Las Vegas. He has claimed that Bay Area will not support the A’s, but this claim is patently false – it’s just that it’s hard to support a team whose owner has such contempt for the fans.
Just yesterday, Oakland fans conducted a “reverse boycott” – selling out a home game just to show that they will indeed show up to support a properly-run team.
But what can they do? Fisher owns the team and wants to move. Are they out of luck? Not at all.
The City of Oakland and the state of California should simply seize the team through eminent domain.
Eminent domain is the quintessential power of sovereignty, enabling the government to make a compulsory purchase of property for public purposes. The classic example is a right-of-way for a road or a school. The government takes the land and the landowner is compensated.
Could this apply to a major league baseball club? Unquestionably. The California Supreme Court has considered this issue, and it should be familiar, because Oakland has been here before. In 1982, the Oakland Raiders attempted to move to Los Angeles, and the city moved for eminent domain. The court said that “providing access to recreation to its residents in the form of spectator sports is an appropriate function of city government.” The idea “has received virtually universal approval in most jurisdictions.”
The court’s holding makes sense. Sports teams mean something to cities. They help create community. I know personally as a Los Angeles Dodgers fan that sports teams have a public function, even if they are private enterprises. Just ask the still-embittered residents of Brooklyn what they think about having lost the Dodgers six decades ago.
Sociologists and urban planners have long known that a “third place,” where people spend time between home (“first place”) and work (“second place”) is vital to building strong public space. These “third places” are where people exchange thoughts, have a good time, and build relationships. Sports stadiums, and even more importantly, the restaurants and watering holes where people watch their teams, and the sorts of “third places” that strong cities need. The bar in the TV show ‘Cheers’ centered on a washed-up Red Sox relief pitcher and the team’s fans.
Were the City of Oakland or the State of California to take the A’s via eminent domain, then at least initially the team would become a public corporation. But we should not fear shibboleths concerning government ownership of businesses. Anyone who has flown the publicly-owned Singapore Airlines or gotten electricity from the Tennessee Valley Authority knows how effective public enterprises can be.
Besides, Fisher’s depleted A’s are on pace for the worst record in baseball history. He is in no position to tell someone else how to run a ball club.
Would eminent domain be expensive? Yes. According to Forbes, the A’s are worth roughly $1.2 billion. But they make money as well: about $29 million a year, again according to Forbes. In any event, we do not ask whether the Parks and Recreation Department is profitable. We do not ask whether museums make money. These are public services. Sports teams are the same.
More realistically, though, Oakland’s and California’s logical move would be to sell the team to a private owner, recouping the funds expended on eminent domain. That’s what A’s fans want. At the reverse boycott, thousands held up signs that begged, “Sell!” And in a Bay Area well-stocked with billionaires, the team’s profitability should find it a buyer.
Resale could create legal issues, but these are easily overcome. There is U.S. Supreme Court precedent forbidding taking property from one private party for another.
But in the famous case of Kelo v. New London, the Court held that an adequate public purpose would be sufficient to avoid this problem.
Even in California, after the state supreme court held that the City of Oakland could pursue eminent domain against the Raiders, an intermediate appeals court forbade it on the grounds that it would violate the U.S. Constitution’s “Dormant” Commerce Clause, which forbids some actions by states that affect interstate commerce. But even such an unpersuasive opinion helps Oakland’s case here. The court noted that in the NFL “[l]eague television contract proceeds are divided equally and gate receipts nearly equally; a team’s drawing power is therefore a financial benefit to the other teams as well as to itself.” This is exactly the opposite to baseball, where teams must bargain vigorously for their own regional television contracts and jealously hoard their gate receipts. Any Commerce Clause problems thus fade away.
This isn’t just about Oakland. Every year, some owner threatens some city with the loss of a team unless he gets his way with a new stadium or some other massive public subsidy. Fisher has done this with Las Vegas, demanding close to a half a billion dollars to pay for his incompetence. Enough.
It is time for cities to fight back. Besides, Vegas already has plenty of magic: the same day that A’s fans pleaded to keep their team, the Golden Knights won their first Stanley Cup championship — with 96-degree heat outside the arena. Sin City will be just fine.
Jonathan Zasloff is Professor of Law at UCLA School of Law and has been a Dodger fan since 1970.