Attorneys for baseball commissioner Bowie Kuhn asked a federal judge yesterday to uphold the validity of a "no-suit" clause in the sport's constitution and to order Oakland A's owner Charles O. Finley to pay certain costs by breaking that agreement by suing Kuhn.
In papers filed in U.S. District Court in Chicago, the attorneys said that baseball's Executive Council had voted unanimously to request such action to settle issues tht are "critically important to the future governance of baseball."
It was clear in briefs filed by Irvin B. Nathan and Paul S. Reichler of the Washington law firm of Arnold & Porter that Kuhn and the council want to stave off costly and lengthy suits that have created turmoil in baseball in recent months.
Defense lawyers have put out-of-pocket expenses in the Finley case at $80,862.92. In addition, there is a request that the judge tell Finley to pay what the court declares is a reasonable amount for attorney fees for the 4,500 hours spent on the case by six of them.
Lawyers associated with the case and with baseball refused to speculate on what the judge might determine to be a reasonable amount or if he would order such damages for the defense. It is conceivable that the costs could run about $200,000 if the normal range of attorney fees is applied, other lawyers said.
Finley lost his $3.5 million suit against Kuhn last month when Judge Frank J. McGarr ruled tht Kuhn had the authority to veto the sale of three star Oakland players and had done so in good faith. Finley has said he will appeal the veredict.
In canceling the sales, Kuhn involked his authority to take whatever action he deems to be "in the best interests of baseball" - sweeping powers the owners said they intended to confer upon him as signators of the Major League Agreement.
An amendment to that agreement in 1964 - strenuously objected to by Finley, but ratified by him - bound the clubs and leagues to accept the commissioner's decision and to waive their right of appeal to the courts.
"If every disgruntled club owner can take every decision of the commissioner to court, major league baseball will no longer be able to function," court documents on behalf of Kuhn state.
Kuhn's attorneys cited this covenant when attempting to get the case dismissed before the trial, but McGarr said he wanted to hear the merits of the case. After finding in Kuhn's favor, the judge said the waiver issue was moot and would have to be tested in other action.
Kuhn's attorney, Nathan, said yesterday at the defense will raise anew the issue in the context of damages. "Finely breached that provision in filing his lawsuit," Nathan said.
Finley's lawyers could not be reached for comment yesterday, but they have said in the past that they don't believe the provision is enforceable.
But, Nathan said, several recent U.S. Supreme Court decisions have held that "sophisticated businessmen can, if knowingly, intelligently and voluntarily, waive their right to go to court in making a binding commitment."
Club owners, who have agreed to indemnify Kuhn for legal costs, and the commissioner "have a pressing need to know promptly whether, as the owners clearly intended, the commissioner will continue to be able to make decisions in the best interest of baseball without fear of expensive and protracted litigation," court papers say.
Awarding damages "should prove an effective deterrent to any future breach of the covenant," they continue.
In an accompanying document containing notes of the Executive Council's telephone conference call about the case, representatives of the two leagues are reported as saying their respective club owners expressed "strong indignation" about being thrust into a costly suit by Finley.
The applicability of the covenant is also expected to be raised or Monday when the suit brought by Atlanta Braves' owner Ted Turner against Kuhn comes up in federal court.
Turner was suspended for one year by Kuhn for tampering with a free agent. The judge in the Turner case is not bound by McGarr's decision.