Will the City of Cleveland Sue to Keep the Browns from Moving to the Suburbs?

Cleveland Browns owners Jimmy and Dee Haslam have announced plans to relocate the team to Brook Park, a Cleveland suburb, where a new stadium can serve as the anchor of a new retail and entertainment complex. City officials, as you might expect, are not happy, and some local officials scoff at the idea.

Despite the wealth of academic evidence that local subsidies for sports team rarely (if ever) pay for themselves, city officials would prefer the Browns stay on the city’s lakefront, and have proposed substantial renovations to the current stadium, or the possibility of (yet another) new stadium.

City officials are not just proposing further subsidies for the team. They are also threatening legal action. Attorneys in the city’s law department are apparently preparing to invoke the “Modell Law,” which was enacted to discourage local teams from leaving.

Suing to keep the Browns sounds like an aggressive strategy, but it is not clear what that would accomplish. Here is what the Modell Law says:

No owner of a professional sports team that uses a tax-supported facility for most of its home games and receives financial assistance from the state or a political subdivision thereof shall cease playing most of its home games at the facility and begin playing most of its home games elsewhere unless the owner either:

(A) Enters into an agreement with the political subdivision permitting the team to play most of its home games elsewhere;

(B) Gives the political subdivision in which the facility is located not less than six months’ advance notice of the owner’s intention to cease playing most of its home games at the facility and, during the six months after such notice, gives the political subdivision or any individual or group of individuals who reside in the area the opportunity to purchase the team.

So the Haslams have to given Cleveland six months notice, during which time they can field offers for the team. That’s it. Given that any move is years away (both because of the existing lease and the time required to build a new stadium in Brook Park), it is not clear how the city could even allege that the law is suing, so it’s not clear what filing a lawsuit would accomplish (other than giving politicians the ability to claim they fought to keep the Browns in the city).

If city officials were really serious about preventing the Browns from moving to the suburb, they would investigate the use of eminent domain to force a sale of the team to the city. This strategy, if combined with the creation of some sort of local ownership structure like the Green Bay Packers have, would also prevent the recurring cycle of private owners demanding ever-greater stadium subsidies to remain. (Subsidies, it is worth reiterating, which do not appear to ever pay for themselves.)

This would be a financially audacious and legally risky strategy, as sports teams are not cheap and I am not sure the use of eminent domain to acquire a sports team so as to prevent it from moving to the suburbs would satisfy the Ohio Constitution, which has been interpreted to impose a more stringent public use requirement than does the Fifth Amendment. I am also not a big fan of using eminent domain to take private property, and I am not at all confident that the city would be a competent manager of the team. (OTOH: Could it be worse than the Haslams?)  My only point is that if city officials were intent on playing hardball, they would be talking about something more meaningful than a suit to “enforce” the Modell Law.

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