Neil DeMause of Vice Sports has an article up today posing an interesting question: why don’t cities just buy sports teams instead of build them stadiums? After all, he notes, often times the stadium deals these teams are getting from cities cost more than the actual value of the team.
As far as the out-of-whack values/costs go, it’s a decent observation. One which should be the first argument against any stadium deal when one is proposed. But the other part — why doesn’t the city buy the team? — is more of a problem. Mostly because, as DeMause notes, no pro sports league wants to sell to a government, ever, so it’s never going to happen.
So DeMause’s argument is this:
Okay, so no league is voluntarily going to allow its franchises to fall into public hands when it can keep on using its monopoly power over team ownership to extract subsidies. Is there any other way to force them to?
The answer is: maybe. And the trick lies in one of the same governmental powers that team owners use on their side in stadium deals: the power of eminent domain.
As the headline notes, it’s a “radical” solution. Unfortunately for DeMause’s argument, however, it’s also one that would never work, and not just practically speaking. It wouldn’t work legally because the power of eminent domain — that is, the power of government to take someone’s property and reimburse them for it at fair market value — would never allow for this kind of purchase.
The Fifth Amendment of the Constitution recognizes the federal government’s right, in some cases, to take property, and the Fourteenth Amendment and attendant state laws grant states the right to do the same. All of these laws, however, limit the government’s takings power to property that will be put to “a public use.” Think of a roadway that cuts across a corner of a farm or a park that will sit on a former factory site.
Of course, over the years, there have been efforts, many successful, to expand the definition of “public use.” These days it doesn’t have to be for land or property that everyone will use. For example, “public use” has been expanded to mean “aesthetic improvement” in some cases, wherein governments can buy up slum property and the like to beautify it. The most recent major attempt to expand it came when a government tried to condemn land simply because some developers thought of a better economic use of the land. Specifically, they tried to take some houses because they assumed a mall would do much better there. Efforts like that one have been largely beaten back due to a fierce backlash against what was perceived to be an attack on the rights of property holders, and now it is much harder for the government to take property on the basis of an economic argument alone. (note: the author of that last linked article is devilishly handsome and wise).
Which takes us to a hypothetical city wanting to buy a hypothetical sports team via eminent domain. How does that happen? What’s the “public use” argument? Will the city make admission to the ballgames free and treat the place like a public park? Of course they won’t. So it really won’t be a “public use,” it’ll be a commercial enterprise. Which is fine if the city buys a team from a willing seller, but as DeMause notes, it’s not going to have one of those.
Heck, this would fail even if that backlash I mentioned above hadn’t happened and courts were routinely allowing cities to condemn property and take it because they can come up with a good economic use argument. Because, as we may have noted one or two times around here, no one has ever actually made a convincing case that the presence of a sports team provides cities with economic benefits. Sure, owners of sports teams argue that all the time when it suits them, but the actual scholarship on that shows that they’re wrong. And if you can’t make a convincing argument about sports teams being public economic boons in a newspaper editorial or a town hall presentation, good luck doing it in a court of law when an eminent domain case comes up.
All of that said, I’d like to see someone try it, simply so that Rob Manfred or Roger Goodell or someone would have to argue, under oath, that no, there is no public economic benefit to the operation of a sports team, as they would have to argue if they wanted to stop a city from taking a team. That’d be positively delicious!
So, good thought experiment, I guess. But a complete and total non-starter.
UPDATE: DeMause comments. Some decent points in there about the potential of at least using the tactic as a bluff:
I’m not a lawyer and you are, Craig, but I still think that you’re selling the possibility of eminent domain slightly short. There are tons of public use arguments, many of them put forward by the team owners themselves — economic benefit, “civic pride,” what have you — that are no more ridiculous than the winning argument in Kelo. Yes, you and I would probably end up being in the weird position of testifying on behalf of the leagues on these, but that doesn’t mean it wouldn’t work.
Besides, for eminent domain to be workable as leverage, a city wouldn’t have to win a case, just to have enough of a chance of winning to scare the leagues and team owners into lessening their demands. If I were mayor of a city, I’d at least send my lawyers to explore the possibility.