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Recapping the Motion

By Todd Fichtenberg

On Tuesday, Judge Jeffrey Brown heard oral arguments regarding Major League Soccer’s Motion to Dismiss the case State of Ohio ex rel. Ohio Attorney General Mike DeWine, et al. v. Precourt Sports Ventures, LLC, et al. In that case, the Ohio Attorney General and City of Columbus are attempting to ensure Major League Soccer and Precourt Sports Ventures comply with Ohio Revised Code 9.67, also known as the Art Modell Law.

Judge Brown was not required to entertain oral arguments. Franklin County Court of Common Pleas Local Rule 21.01 states “Oral arguments are not permitted except upon leave of the Trial Judge upon written request by a party.” In Defendants’ reply brief supporting their Motion to Dismiss, Defendants requested oral argument, and Judge Brown chose to allow oral arguments to take place.

The hearing seemed to be provided to show all parties that the Court (another term for “Judge”) was taking the case seriously. Although the Court allotted 45 minutes of argument per side, Judge Brown showed an abundance of patience with Defendants, allowing them extra time. Judge Brown acted as a “cold court,” meaning he asked very few questions of any of the arguing counsel. This is not to say that he had his mind made up prior to the hearing, but rather that he understood the nuances of the case as argued in the briefs and simply wanted to allow the parties to provide clarifications.

After a quick quip, “we need a bigger courtroom,” Judge Brown immediately launched into the proceedings, asking the attorneys if they were ready to proceed and to introduce themselves. Bradley Ruskin, Esq. of the New York City law firm Proskauer Rose LLP first took the podium on behalf of Major League Soccer. He made very few references to the “PSV entities” in the hour and five minutes he argued before the Court, implying that MLS was running the show.

Ohio is a “notice pleading” state, meaning a party must provide “a short and plain statement of the claim showing that the party is entitled to relief.” See Ohio Rules of Civil Procedure 8(A). In other words, the Ohio Attorney General and City of Columbus need only to state plausible allegations to survive a Motion to Dismiss. MLS in its argument neglected to mention this burden on their Motion to Dismiss. Instead, Mr. Ruskin primarily read from his notes and didn’t offer much in the way of new argument that hadn’t already been briefed. It was a confusing use of the time Defendants requested, perhaps leaving the observer with thoughts and hopes that MLS was going through the motions while working out a deal behind closed doors to allow an MLS team to be in Columbus.

MLS doubled-down on its argument that MLS is the owner of the Columbus Crew and that the taxpayers of Ohio and Columbus provide no direct benefit to the team. This argument later came back to haunt Mr. Ruskin during his rebuttal. He said if his 24-year-old daughter gets financial aid, that doesn’t benefit him as her father. Judge Brown said that it does directly benefit him, leading to an outburst of laughter in the courtroom.

The only demonstrative evidence provided at the hearing was a printout of R.C. 9.67 placed on an easel, to which Judge Brown noted, “I’m quite familiar with that statute.” It was disappointing that the Ohio Attorney General or City of Columbus did not show a video of Richard Suttle, a lobbyist for MLS, telling the Austin City Council that the litigation in Ohio does not impact what MLS and PSV are doing in Austin.

Assistant Attorney General Samuel Peterson, Esq. argued on behalf of the State of Ohio that nobody forced the Defendants (MLS/PSV) to take public funds. Defendants volunteered to take this money and lobbied to change the Ohio Revised Code for benefits, he argued. Mr. Peterson further contended it is “illogical” MLS as the owner of the Columbus Crew does not receive financial assistance when the Columbus Crew is given assistance by the taxpayers. The rest of MLS’s arguments, Mr. Peterson said, are more appropriate for Summary Judgment motions after conducting discovery, rather than for a Motion to Dismiss.

Mr. Peterson also showed a familiarity with the state court and spectators. He referred three times to a 6th Circuit decision Garber v. Menendez (not Don Garber). In this case, United States Circuit Judge Jeffrey S. Sutton questioned whether it was possible to render a decision in a case like this at the Motion to Dismiss stage, upholding an Ohio statute. Judge Sutton graduated from the Ohio State University Moritz College of Law and is one of the most respected jurists and lawyers from Columbus. Mr. Peterson also mentioned “Glory to Columbus,” Wil Trapp, Brian McBride, Guillermo Barros Schelotto, Alejandro Moreno, and Frankie Hejduk.

Drew Campbell, Esq. of Bricker and Eckler, providing pro bono (free) services to the City of Columbus, said Defendants “can’t take the money and run.” He argued that in the process of attempting to do so, MLS is “trying to take the house down.” He also reiterated that this is the Motion to Dismiss stage, and this case should go forward to discovery and litigation. Mr. Campbell concluded by noting MLS/PSV “came to the city with eyes open and hands out.”

Together, Mr. Peterson and Mr. Campbell argued for 40 minutes. Their presentation was more than just reiterating the same tiresome arguments that had already been briefed. This did not seem like a political stunt or something to pass the time. Instead, the Ohio Attorney General and City of Columbus exhibited preparation, passion, and posh. We as Crew fans are lucky to have these fine attorneys advocating to keep the Crew in Columbus.

All parties agreed that they did not need supplemental briefing. Thus, Judge Brown took the matter under advisement and will rule “as soon as practicable.” Speaking purely in terms of procedure and not out of bias, there’s a 99.6% chance Judge Brown will deny the Motion to Dismiss and send the case to discovery. This will provide added pressure on MLS to work out a deal of some sort.

If Judge Brown does deny the Motion to Dismiss, this is probably not a final, appealable order. (That doesn’t mean MLS/PSV won’t try to appeal.) If Judge Brown does dismiss some claims, that likely isn’t a final and appealable order, either. However, if Judge Brown dismisses the entire case, that will be appealable. Importantly, whatever happens at this stage, it’s still not over. Tell everyone you know.

One thought on “Recapping the Motion

  1. Very nice. Very well written.

    Please keep up the good work.

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