This City by the City by the Bay feels slighted. Tony Bennett sings about and everybody gushes about San Francisco, and --the last straw--Los Angeles has stolen the Raiders. But Oakland may force the return of its football team, using a legal maneuver of stunning boldness.
The Los Angeles Raiders have pictures of pirates on their helmets, an apt motif for their owner, Al Davis, a buccaneer who worships ardently, but only, those rules that serve him. Although Oakland built a colosseum and filled it for him every game through 13 straight seasons, Davis incited, and then surrendered to, the seduction of Los Angeles, which needed a tenant for its colosseum, the Rams having hightailed it to Anaheim.
The NFL constitution says three- quarters of the league's members must approve a move. But instead of asking, Davis, who has noticed that a court can be found that will do anything, got the NFL rule declared an antitrust violation. The federal court noticed the obvious with a sense of discovery--the obvious fact that professional sports leagues require collaboration to maintain competitive balance. The court allowed Davis to sell himself to Los Angeles, which cannot be sure how many millions of dollars are involved in its subsidies to Davis.
But persons who live by litigation deserve to die by it, and Davis may. Oakland is currently in a state court arguing that its power of eminent domain enables it to acquire the Raiders from Davis for "just compensation." California's supreme court has rejected Davis' argument that eminent domain permits only the taking of realty property, not "intangible property." It is odd to call NFL players intangible, but Davis means the web of franchise rights.
The supreme court held that no federal or state constitutional provision limits the nature of the property that may be taken by eminent domain, and neither does California's statute empowering municipalities. The most conservative justice wrote the opinion for the court. The chief justice, Rose Bird, the most liberal member, dissented while concurring.
Eminent domain is power that can be used only in furtherance of a legitimate "public use." But that restriction barely restrains.
In 1948, the U.S. Supreme Court rejected the distinction between government's power to acquire corporeal property and power "to resume or extinguish a franchise." In 1923, the court said "public uses" may encompass matters of recreation and enjoyment. (In such a case land was acquired to provide parking now used by Rams fans in Anaheim.)
Oakland makes economic arguments, citing lost jobs and revenues, arguments Los Angeles must respect because Los Angeles bought Davis to resuscitate the economy of its colosseum and environs. Oakland also argues that an intangible but nonetheless vital asset--the city's pride--is linked to the team, and that civic morale is a legitimate concern of urban statecraft.
If professional teams enjoy exemption from antitrust constraints, use talent trained primarily at public expense (in college football), benefit from huge public subsidies (stadiums) and receive guaranteed fortunes from a regulated semi-monopoly (network television), they can hardly claim unconditioned rights of private property. Given traditional judicial deference to municipalities' calculations of what is necessary for "public uses," Oakland may recover the lost Raiders. And Oakland's demonstration of the rewards of audacity may breed other audacities.
Competition between states to lure businesses--by tax breaks and other inducements--is natural to federalism. (Minnesota and South Dakota currently are at daggers drawn.) If Oakland wins, some municipality will try to use eminent domain to acquire, for resale to local ownership, some business attempting to relocate.
Although she felt "forced by the current state of the law" to concur with her court's holding, Chief Justice Bird, supposedly the Trotsky of America's judiciary, expressed deep misgivings. She deplored the "creeping statism" and the drastic invasion of property rights involved in allowing a government (Oakland) to condemn a viable business and sell it to another private party for the sole purpose of preventing relocation. But until there are legislatively imposed restrictions on the use of eminent domain, "there appears to be no ground for judicial intervention."
Businesses differ in the degree to which they are supported by public measures and permeated with the public interest. Legislative restrictions on the use of eminent domain can be related to those differences, and to some criteria for delimiting valid "public uses" of property acquired by eminent domain.
Oakland deserves to win because sports franchises are more subsidized than most businesses, and are peculiarly woven into the fabric of civic identity. But the increasingly blurred line between public and private sectors will be hazy indeed if the use of eminent domain is limited not by legislated restrictions but only by the self- restraint of municipalities inflamed by Oakland's example.