The Austin Chronicle

At Court With Precourt

Legal volleys in the fight for the Columbus Crew

By Austin Sanders, April 27, 2018, News

Attorneys representing Precourt Sports Ventures and Major League Soccer laid out their case for dismissing a lawsuit intended to prevent them from moving the Columbus Crew last week, arguing that the law cited in the suit stood in violation of both the U.S. and Ohio Constitutions, and also that the plaintiffs – Ohio Attorney General Mike DeWine and Columbus City Attorney Zach Klein – had little factual evidence to support their claim that the law applied to PSV.

In the 25-page brief, attorneys Dan L. Cvetanovich and Marc J. Kessler argue that the statute in question (known as the Modell Law) is "blatantly unconstitutional" because it violated three clauses of the U.S. Constitution that deal with how state laws interact with businesses and citizens in other states. The law requires professional sports teams in Ohio that have used a tax-supported facility or received financial assistance from the state to either gain their home town's permission to relocate, or give six months' notice for local buyers to purchase the team. The statute is named after Art Modell, the reviled former owner of the Cleveland Browns who moved his NFL team to Balti­more in 1996, and Cvetan­o­vich and Kessler say it gives local buyers an unfair advantage over out-of-state buyers, violating the Dormant Commerce Clause of the U.S. Constitution, and that it violates the Priv­ileges and Immunities Clause because the six-month window is a "special privilege" unavailable to out-of-state buyers.

The most notable part of the motion, however, is the defense's argument that PSV does not actually own the Crew, but are rather merely a manager (as "operator/investor") of one of the 23 teams that play in MLS – meaning any legal action must be lobbed at the actual league, and not PSV. (In accordance with that, PSV CEO Anthony Precourt has updated his Twitter bio to read "Investor/Operator" of the Crew, rather than "Owner/Chairman.") Should the courts accept this line of reasoning, the millions of dollars in taxpayer-subsidized benefits given to the Crew over the years would become irrelevant, because they were not benefits received by MLS, who may be the true owners of the Crew.

DeWine replied in a counter brief alleging "factual misdirection" and that the motion to dismiss "relies on rarely used constitutional claims that lack merit." DeWine's brief also addressed a previous request by MLS and PSV to stay discovery of evidence until the court determined the applicability of the Modell Law. The state is seeking access to financial records, which it says are critical to understanding the team's ownership structure, as well as information on any offers PSV has heard from local buyers. The Columbus Post-Dispatch confirmed that in March, MLS deputy commissioner Mark Abbott and others were in Columbus to meet with business community leaders about potential buyers for the Crew.

Another wrinkle in the drama is that DeWine is running for governor of Ohio, and is currently favored to win the Repub­lic­an nomination in the May 8 primary election. The former U.S. senator has enjoyed several electoral successes in Ohio, and one way for him to lock down a solid voting bloc may be to wage a public battle against the corporate entities trying to relocate the capital city's professional soccer team – even if most law experts agree the battle he's waging is unwinnable.

What will happen with DeWine's suit is a game of speculation, because the Modell Law has never been tested in court. Pete Reid, an Austin lawyer who has written about the unfurling saga, said PSV's motion to dismiss is common in such litigation, though rarely granted. He wrote that DeWine and Klein were unlikely to win the suit, but that the case could cause "some delay in the process" of moving the Crew to Austin.

For PSV, with the clock ticking, any delay could prove consequential.

The most notable portion of the motion is the defense’s argument that PSV does not actually own the Crew.

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