Late yesterday, Dave Kaplan posted a few paragraphs from the Cubs’ contract with the Rooftop Owners Association, and I, for one, was pretty shocked by what I saw. Given the Cubs’ stance on negotiating with the RTA and Kaplan’s comments that the contract was “pretty good for the RTA,” I was expecting the Cubs to be completely boxed into a corner in terms of language. But they aren’t. At all.
First, let me say that contracts should be read globally, and it’s tough to just look at certain sections of the contract without having access to the whole thing. Is there a definitions section? Is there a section that limits remedies? Are there other sections that limit or except the sections we’re seeing? Without the entire contract, it’s impossible to know. However, for the sake of argument, let’s assume that the sections Kaplan has published are, on their face, what they appear to be.
I should also say that, as a trial lawyer, I’m probably much more aggressive in terms of letting disputes be settled at trial than some other lawyers. There are plenty of lawyers out there who have never set foot in a courtroom and are terrified to do so. Still others who think trial is the worst way to settle a dispute, because you can never control what the judge is going to do. But I think the specter of a trial looming over one’s head is the biggest incentive to reach a reasonable settlement. Given the choice between an unknown trial result and an attempted settlement that drags out forever, I’ll go to trial every time. I’d be insincere if I didn’t admit that sometimes colors my legal analysis.
So let’s take a look at the contract. The most relevant section we get a look at is section 6.6:
6.6 The Cubs shall not erect windscreens or other barriers to obstruct the views of the Rooftops, provided however that temporary items such as banners, flags and decorations for special occasions, shall not be considered as having been erected to obstruct views of the Rooftops. Any expansion of Wrigley Field approved by governmental authorities shall not be a violation of this agreement, including this section.
7.3 From time to time during each season, the Cubs shall authorize WGN-TV or other Cubs broadcasting partners to identify a phone number where fans can call to reserve Rooftop seating.
7.4 The Rooftops shall have the right to inform the public that they are endorsed by the Cubs.
7.5 The Cubs Director of Marketing shall meet with the Rooftops before the start of each Major League Baseball season to discuss opportunities for joint marketing.
7.6 The Cubs shall include a discussion about the Rooftops on their tour of Wrigley Field and shall include stories positive about the Rooftops in The Vine Line.
7.7 Each of the Rooftops may display broadcasts of Cubs games to patrons at its facility, including displaying such broadcasts on multiple television sets, without any infringement of any copyright owned by the Cubs or its assignees.
I’ve highlighted the “money clause,” as I’m calling it. I actually gasped when I read it, and, given how clear cut it is, I’m really surprised the Cubs have tried to negotiate for this long. What a lawyer is looking for in a contract is not necessarily a dead-bang winner argument, you’re just looking for an argument. A decent argument. This is because judges don’t rule, often, strictly on the law. They decide what they want to do and then work backwards, finding a way to justify their decision based on fairness and public policy and all kinds of other factors. So what a lawyer is really looking for is something the judge can hang his hat on in taking the Cubs’ side. Here, I think we have more than that.
So what this entire argument comes down to, it seems, is whether or not the jumbotron is an “expansion” of the bleachers within the meaning of the contract. The Cubs have a really, really good argument that it is.
First, the Cubs have been clear that the jumbotron is just part of a larger expansion project at Wrigley. Indeed, the fact that they’ve held off on doing any construction until they have an agreement with the RTA or a court order is to their benefit — it’s harder to make the argument that the jumbotron is separate from the rest of the expansion when the Cubs have refused to separate the expansion into individual parts (jumbotron, right field sign, grand stand renovation, etc.). This is smart on the Cubs part. Unless the term “expansion” is defined elsewhere in the contract, the judge (or arbitrator) can look to the intent of the parties to determine what they meant by “expansion.” In determining the intent of the parties, the judge can look both inside and outside the four corners of the contract.
Which brings us to the next section, even though it expired in 2012.
6.2 If the Cubs expand the Wrigley Field bleacher seating and such expansion so impairs the view from any rooftop into Wrigley Field such that the Rooftop’s business is no longer viable even if it were to increase its available seating to the maximum height permitted by law, and if such bleacher expansion is completed within eight years from the Effective Date (1/27/2004), then if such Rooftop elects to cease operations before the beginning of the next baseball season following completion of such expansion, the Cubs shall reimburse that Rooftop for 50% of the royalties paid by that Rooftop to the Cubs during the time between the Effective Date and the date of expansion of the Wrigley Field bleachers. The Cubs shall pay such reimbursement to the Rooftop within 30 days of receiving notice from the Rooftop it is no longer viable and has ceased operations. Any Rooftop receiving payment from the Cubs pursuant to this provision shall cease operations for the remainder of the term and shall not seek or accept any compensation or benefit related to activity on a Rooftop on a day of a game.
This section is really good for the Cubs, and here’s why: First, there’s the argument that, once the 8-year period from 1/27/2004 to 1/27/2012 ended, the Cubs were no longer liable for damages that resulted from blocking the rooftops’ view. Otherwise, why would this section have an expiration date? Second, it sets a value on what the rooftops’ view are worth: 50% of the royalties paid by THAT rooftop to the Cubs during the time from 1/27/2012 to the date of the “expansion of the bleachers.” Though technically this section is no longer valid, it gives the judge a good idea of what the Cubs and the RTA intended the contract to do, and, most importantly, it demonstrates that one of more rooftop ceasing operations due to a blocked view was something that the parties contemplated when entering into the contract. This means that the RTA’s argument that the Cubs are in complete and total contravention of the contract rings somewhat hollow.
Then there are the public policy points: As a society, we want contracts to matter and to be valid. Having people just walk away from valid contracts is bad for everyone. On the other hand, the right to do as one wishes with one’s property is a more sacred right, as far as the court is concerned. If the court can come up with a way to make the RTA “whole” without restricting what the Cubs can do with their property (ie. via cash damages), that is what the court should be inclined to do. Add to that the fact that Mayor Rahm Emanuel really really wants this thing to get done (judges and arbitrators are not, sadly, immune from political pressure), and the Cubs are on pretty solid footing.
Obviously, the Cubs don’t care one wit what I have to say about it, but, if I were advising the Cubs, I’d be very comfortable going forward with the renova . . er . . expansion based on the language in these few sections of the contract. It appears that the Cubs are now, finally, doing that.
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