Commentary

Should they stay or should they go? Sonics case begins

Updated: June 16, 2008, 9:43 PM ET
By Lester Munson | ESPN.com

In the first of a series of legal battles that will determine the future of the Seattle SuperSonics, attorneys for the city of Seattle will try to convince a federal judge in a trial that began Monday that the Sonics are bound by a lease with the city and must play two more seasons in Seattle. On the other side, Sonics owner Clay Bennett and his co-owners want to move the team to Oklahoma City immediately and insist they should be permitted to leave Seattle if they pay the rent at KeyArena for the next two seasons. Bennett has the NBA's approval for that move. The trial and other litigation and threats of litigation raise numerous legal questions. Here are some of the questions and their answers:

How can a judge force a team to play where it does not want to play?

[+] EnlargeClay Bennett
AP Photo/Tina FinebergA legal brief written by lawyers for Sonics' owner Clay Bennett says Seattle fans are treating the team with "yawning indifference."
It is a bit unusual to ask a judge to force a person or an organization to do something it does not want to do. Judges can be reluctant to put themselves and their courts in positions in which they are managing or supervising something. They are not equipped for such activities. The legal term for this kind of court order is "specific performance." This kind of court order requires a person or an organization to comply with the terms of a contract. It can and does happen.

What makes the city think it is entitled to "specific performance" of the lease?

The key factor in obtaining an order of specific performance is the language of the contract. If the language of the contract is strong enough, an order of specific performance can result. In the lease between Seattle and the Sonics, the contractual language appears to be strong enough. The contract was written in anticipation of the team trying to move and the city trying to stop the move. The key sentence is this: "The obligations of the parties to this agreement are unique in nature; This agreement may be specifically enforced by either party." The key word in this key sentence is "unique." Both sides agreed when they signed the lease in 1994 that the presence of NBA basketball in the city's arena was irreplaceable. They agreed there was no sum of money that could replace the Sonics for the 15 years of the lease. Because city lawyers anticipated the current situation when they negotiated and signed the lease, the city's position is strong. It is hard to see how Bennett and his OKC crew could avoid playing two more seasons in Seattle.

What makes Bennett and his group think they can abandon Seattle with two years remaining on the lease and move to Oklahoma City?

It is not a big surprise that Bennett and his lawyers will try to avoid talking about the "unique" nature of NBA basketball and the killer contract clause that allows Seattle to seek specific performance, or, as it says in the lease, "specific enforcement." They will offer U.S. District Court Judge Marsha J. Pechman all sorts of arguments and suggestions, some of them highly creative and imaginative, to take the case away from that direction. They will assert that specific performance will be a terrible burden for her and her court for two years. They will warn Pechman that she will face an endless series of questions and disputes as the city begins to question the judgments of Bennett and his general manager. The city lawyers will reply that the city will leave the team alone for two years and will not try to impose its judgment on basketball and management issues. Bennett's group will conclude with the claim that the city is entitled only to the $10 million in rent provided in the lease's rent formula.

Bennett's lawyers also will suggest Seattle doesn't deserve the Sonics. The fans, they will claim, are guilty of "yawning indifference" (a phrase used in the Sonics' trial brief) and apathy. They will try to use a poll and newspaper editorials, items that rarely qualify as evidence in federal courts. And the city government, they will add, has been deliberately harming the team in hopes Bennett will sell the team to Seattle owners. They will try to compare the support in Oklahoma City with the declining support in Seattle, asserting that they are entitled to go where it is profitable. Some of it will qualify as evidence that counts in the outcome, but some of it will not. Much of the decline in fan interest in Seattle likely can be attributed to the team's worst-ever 20-62 record last season and to Bennett's attempts to abandon the city.

Who sued whom? How did this end up in court?

[+] EnlargeGreg Nickels
AP Photo/Elaine ThompsonIt didn't escape the attention of Seattle Mayor Greg Nickels that Bennett asked for permission to move the team less than a year after he took ownership.
The city fathers in Seattle, including Mayor Greg Nickels, could not help but notice when Bennett, less than a year after he bought the team from Starbucks founder Howard Schultz, asked the NBA for permission to move to Oklahoma City. Refusing Bennett's offer of a cash buyout of the remaining two years on the lease, the city decided to try to enforce the lease. The city's $80 million investment (in the form of improvements to the arena) since 1995 in the Sonics, the oldest sports franchise in the market, was a factor in the decision. The city filed what is known as a "declaratory judgment." It's a legal action that asks the court to determine the rights of the litigants in a developing dispute. The declaratory judgment allowed the city to file quickly without waiting for Bennett to begin the actual move. It means the city is the plaintiff in the lawsuit, will go first in the trial and has the burden of proving its case.

When will we know who wins?

Pechman has scheduled six days for the trial. Each side will be permitted 15 hours to present witnesses and evidence. The first five days are this week. The sixth and final day is June 26. Because this is a bench trial, there is no jury. Pechman is the sole decider. She could rule on the 26th, but it is more likely she will take all the testimony and the other evidence (primarily documents) under consideration and issue a written, detailed opinion a week or two later.

A player looks forward to the moment when he becomes a free agent and can cash in on his talent and success. Does Bennett think he is a free agent as an owner? If he isn't, will he ever be a free agent as an owner?

It usually is the player who wants free agency and fights for it in collective bargaining and court cases, and it usually is the league that fights against free agency. But in this case, the owner is fighting for free agency and the league is supporting him in his fight. Many owners have succeeded in making it to free agency. The most notorious have been the Colts' nighttime move from Baltimore to Indianapolis, the Browns' sudden move to Baltimore after assuring Cleveland they would stay, and the Raiders' moves back and forth between Oakland and Los Angeles. Bennett's case is a bit different. He faces not only the lease that probably will keep him in Seattle as a lame duck for two more seasons but also other lawsuits. The most interesting is Schultz's attempt to take the team back from Bennett and his group and resell it to what Schultz calls an "honest buyer." None of the other owners who moved their teams as free agents faced anything quite like the Schultz attack. Although Bennett claimed at the time he purchased the team from Schultz that he intended to try to keep the team in Seattle, a series of damaging e-mails has surfaced that indicates Bennett always thought he was a free agent and was preparing to move from day one. If Pechman rules for Seattle and against Bennett, Schultz will have two years to succeed in recapturing the team and selling it to a group that will keep it in Seattle. Bennett might be further from free agency than the average rookie.

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.