The first hearing in Ohio lawsuit that could affect Austin’s chances of landing a Major League Soccer team was held Tuesday, with Franklin County judge Jeffrey M. Brown hearing arguments for and against dismissing the case.
Brown did not rule on a motion dismiss filed by defendants Precourt Sports Ventures and Major League Soccer, but said a decision would be forthcoming.
Last month, Columbus Crew SC investor-operator Anthony Precourt reached a deal with the city of Austin to build a $200 million stadium on city-owned land near the Domain. The Ohio lawsuit, brought forth by Attorney General — and gubernatorial candidate — Mike DeWine along with the city of Columbus, seems to be the only thing holding up MLS from officially announcing a move.
On Tuesday, both sides were given 45 minutes to present Judge Brown with arguments for and against dismissing the suit.
MLS and PSV, represented by Brasley I. Ruskin of New York law firm Proskauer Rose, based much of their commentary on the claim that Ohio Revised Code 9.67 violates the dormant commerce clause of the U.S. Constitution.
The law, drafted in 1996 after Art Modell relocated the NFL’s Cleveland Browns to Baltimore, requires owners whose teams receive taxpayer assistance to give six months notice and an opportunity for local investors to purchase the team.
“That is discriminatory on its face,” Ruskin said. “That favors people within the state. That burdens interstate commerce.”
He said there were more than a dozen examples of Supreme Court cases to back up his claim.
Judge Brown said that the standard for proving unconstitutionality at the motion to dismiss stage is very high, as in Ohio a statute is presumed to be constitutional until a court rules that it’s not.
Ohio and Columbus argued that the statute is not overly burdensome in regard to interstate commerce.
“This lawsuit has only been pending for about six months, but during that time the defendants have negotiated every conceivable aspect of their move to the city of Austin,” Drew H. Campbell, an attorney representing the city of Columbus, said. “This statute didn’t bar that and nobody asked to stop that.”
If Judge Brown rejects the motion to dismiss, it would move the case another step closer to litigation. UCLA law professor Steven Bank, who has been following the lawsuit closely, doesn’t believe either side wants to let it get that far.
“I don’t see how a multi-year litigation process is good for either side,” Bank told the American-Statesman. “For MLS, that would be awful because nobody would be coming to games in Columbus. It would hurt their negotiations for TV contracts.
“Meanwhile, Columbus has got a team that is doing nothing to work on its stadium and has fewer people interested in the team. It’s not good for Columbus.”
The logical solution for both parties, he said, would be a settlement, and MLS could push toward that end by officially announcing a move to Austin while also placing operating rights for sale in Columbus.
Under this scenario, if the league gets an offer it likes, the Crew stays and Precourt gets rights to an expansion team in Austin. If no offer is made, or if the price is too low, the team moves.
“The most likely outcome is some form of settlement,” Bank said.