Lester Munson - ESPN Archive
-
April 16th, 2008
With the NBA expected to approve the Seattle
SuperSonics'
relocation to
Oklahoma City on
Friday, former
Sonics owner
Howard Schultz
thinks he can
rescue the team
for Seattle with
a lawsuit. When
he sold the team
for $350 million
in 2006, Schultz
thought the new
owners would
work to keep the
team in Seattle.
Recently
disclosed
e-mails sent by
the new owners
now indicate
that the new
owners had no
plans to keep
the team in
Seattle and were
hoping for a
quick move.
Schultz and his
attorneys think
that's enough to
convince a judge
in Seattle that
the new owners
are guilty of
bad faith and
fraud and should
be required to
return the team
to him. Schultz
is not asking
for money. The
situation raises
a number of
questions about
Schultz, the
Seattle market
for big league
sports, the new
owners, their
contacts with
each other and
their
motivation. Here
are some of the
questions and
their answers:
Would Schultz succeed
in undoing the sale he made in July
2006 and force the new owners to
return the team to him?
It is unlikely. Schultz and his
attorneys must convince a judge that
Clay Bennett, the new owner, was
guilty of fraud at the time of the
sale. To do so, they must produce
witnesses, e-mails or other evidence
showing Bennett knew at the time of
the sale that he would move the
team. It is a daunting, and perhaps
impossible, task. The first piece of
evidence surely would be the comment
last fall by Sonics minority owner
Aubrey McClendon, who said: "We
didn't buy the team to keep it in
Seattle, we hoped to come here
[Oklahoma City]." The comment earned
him a $250,000 fine by the NBA.
Equally embarrassing for Bennett and
his partners is a recently disclosed
series of e-mails. Bennett's crew
talked in their e-mails about "lame
duck" seasons in Seattle, indicating
they were seeking to make a quick
exit from Seattle. Even with this
evidence, Schultz might not have
enough to meet the stiff legal
requirements of proof of fraud.
Bennett will counterattack with his
hiring of an architect and a
lobbyist and the efforts he made to
obtain financing for a new arena.
Courts demand strict proof whenever
fraud is claimed in a sale. Unless
Schultz can somehow find more
powerful evidence that Bennett never
intended to stay, he will be
unsuccessful in his efforts to take
back the team.
Are there
other legal theories or claims
available to Schultz?
Schultz's attorney, Richard Yarmuth,
asserts that Bennett was required in
a "side letter" that was part of the
sale to keep the team in Seattle
until the end of the KeyArena lease
(two more seasons) and to make a
"good faith" attempt to find a way
to stay indefinitely. Although
Yarmuth has not disclosed the exact
language of the side letter, it
might give Schultz another avenue of
attack. But Schultz and Yarmuth must
be able to prove that Bennett failed
to meet a standard known as "best
efforts." Like proof of fraud, it
will not be easy. Bennett will
respond with a showing of his
attempts to obtain taxpayer money
for a new arena and the
unwillingness of Washington
politicians to offer anything to the
Sonics.
Why would
Schultz try something that is so
unlikely to succeed?
Ever since he sold the team,
Schultz, the founder and CEO of
Starbucks, has been reviled in
Seattle. Fans view him with scorn
and contempt, incensed that he was
willing to sell their team to
outsiders, opening the possibility
that the team would leave. NBA
officials are watching closely, and
a spokesman said the league views
Schultz's threatened lawsuit as a
"PR move" and "grandstanding," an
attempt "to regain some popularity
for himself and his company." But,
even if it is a grandstand move, it
might be a good one. The e-mails are
not good for Bennett and his
partners. They likely wish they had
never sent them. If Schultz succeeds
in recapturing the team, he would be
a hero. If he succeeds in only
delaying a move to Oklahoma City, he
helps himself and his company.
What about
the NBA? Why would commissioner
David Stern and the owners allow
Seattle to move from the
14th-largest market to the
45th-largest market?
Trying to explain the probable move,
Stern suggests that Seattle has
shown it is not interested in an NBA
team. The people of Seattle and the
state of Washington helped the
owners of the Seahawks (NFL) and the
Mariners (MLB) with new stadiums,
but they have refused to do anything
for the Sonics. Bennett worked hard
on a proposal for a $500 million
arena in suburban Renton, but could
not find public support. In addition
to his publicly stated reasons,
Stern knows that NBA owners are free
agents and can move when they want.
If the NBA tried to stop a move, the
owner would file an antitrust action
against the NBA, and the owner would
win. The NBA is a monopoly and is
vulnerable to antitrust actions from
owners who want to move their teams,
according to Stephen F. Ross, a law
professor at Penn State who has
written the definitive text on
antitrust law and sports. That's how
Al Davis moved his Raiders many
years ago (he won a lawsuit to do
it), and that's how the late Georgia
Frontiere forced the NFL to permit
her to leave Los Angeles and to move
the Rams to St. Louis. Commissioners
don't like to admit it, but owners
are free agents and can move when
and where they wish.
Does the NBA
gain anything if the Sonics move to
Oklahoma City?
It is hard to see what the NBA
gains, but there are a couple of
intriguing possibilities. Some
conspiracy theorists suggest that a
move out of Seattle would help other
teams obtain public money for new
arenas. If, for example, Sacramento
wanted tax dollars for a new venue,
it could use Seattle as an example
of what happens when local leaders
ignore the pleas from team owners
for public funds. Another theory is
that the NBA is clearing out the
Northwest for Paul Allen and his
Trail Blazers. With the Grizzlies in
Memphis and the Sonics in Oklahoma,
Allen would enjoy a huge market. The
problem with the help-Paul-Allen
theory is that Allen also owns the
Seahawks and wants to remain at
least somewhat popular in Seattle.
What is the
best hope for Sonics fans in
Seattle?
The best hope is Seattle's effort in
a lawsuit to enforce the terms of
the Sonics' lease of KeyArena.
Although Bennett has offered $26
million to buy out of the lease,
city officials insist that the team
play the next two seasons in Seattle
as required in the lease. The city
has taken the team to court to
enforce the lease, and a trial is
scheduled for June 16. The city
likely will win. Bennett could then
offer more money to buy his way out.
If the city refuses Bennett's buyout
offer, the team would play two more
seasons. During those two seasons,
Microsoft's Steve Ballmer or other
Seattle business moguls would have a
chance to save the team for Seattle.
Lester Munson, a
Chicago lawyer and journalist who
reports on investigative and legal
issues in the sports industry, is a
senior writer for ESPN.com.