For quite some time now, the Chargers have been laying the ground work for a move to Los Angeles if the team and the San Diego government cannot come to an agreement on a new stadium in either Mission Valley or Downtown.
Carson is calling. Inglewood could be, too. But one major issue could prove to be an obstacle too large to overcome: Moving a football team from San Diego to L.A. might not be legal.
Chargers fans are dedicated to keeping their beloved team in America’s Finest City, even if it means they have to sue the NFL to do it, and they have found someone willing to help them if necessary.
“The Chargers and the NFL are basically saying give us what we want or we’re going to move the team,” says former City Attorney Mike Aguirre. “That really is a violation of the anti-trust laws.”
San Diegans who have followed the last decade and a half of stadium wrangling may have memories of Aguirre being a thorn in the Chargers’ side. He says he’s always been pro-Chargers, that he’s learned from those days and sees a constructive way of moving forward.
“It’s easy to come across as being anti-Chargers,” says Aguirre. “That’s where you have to be super, super cautious to say this is not anti-Chargers, this is pro-keeping the Chargers here in San Diego.”
The meat of the idea comes from a few different places. One is the Sherman Act. Another is the anti-trust lawsuit a group of NFL players brought against the NFL during the 2011 Lockout. Another is Boltman.
“What we would like to do here is get support and feedback from the fans that this is the best option if the Chargers turn their backs on us,” said Dan Jauregui, better known to many by his alter-ego Boltman. “The beauty of all this is it is not coming from the Mayor’s office or the city or CSAG. It’s coming from the Charger fans. No political issues from the city.”
In a written statement entitled, Desperate Times Call For Desperate Measures, Jauregui outlines the idea of bringing a lawsuit against the NFL:
“We strongly feel that if the Chargers continue to threaten our city and hold fans hostage after a fair and reasonable finance plan has been submitted, we will have no choice but to prepare to make our case in court under the laws that prohibit unfair competition. I have also prepared a “demand” letter to the city of San Diego, requesting they file an injunction against the NFL to protect the rights of San Diego fans by asserting the city’s rights under anti-trust law. This demand letter has not yet been served to the city. We have arrived at this point very reluctantly, but we believe as Americans we have the duty to assert our rights under the laws that require our markets to be kept open and free. The NFL cannot be allowed to use unlawful monopoly power to deprive us of what the fans have worked and sacrificed to make possible: a very successfully NFL team.”
It is extremely difficult to win an anti-trust case in America. If any current business knows that, it’s the National Football League.
“What’s great about this issue is the NFL has already lost,” says Aguirre. “So if the city were the raise it as a serious issue and really get behind it the hope would be the NFL would see the city is serious and force everybody in to a position of, Let’s try to work this thing out.”
The case most germane to the idea came about in 2011. A group of NFL players led by Tom Brady, Peyton Manning, Drew Brees and a few others filed a class action suit against the NFL and its 32 member teams on anti-trust grounds. Their complaint read, in part:
“The NFL Defendants comprise the only major professional football league in the United States. Together, they monopolize and/or restrain trade in, and/or have combined and conspired to monopolize and/or restrain trade in the United State market for the services of major league professional football players.”
That phrase, restrain trade in, is one of the keys here. Section 1 of the Sherman Anti-Trust Act says, in part:
“Every contract … or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal …”
That’s the verbiage that could cause serious problems for the Chargers and the NFL if an attempt is made to move the team to the Los Angeles market. The NFL lost its case in 2011 (a decision “overwhelmingly” upheld by the 8th Circuit Court of Appeals) and would face a similar argument in San Diego.
According to Aguirre, restraining trade is legal if it’s done under reasonable circumstances such as a financial hardship.
“Normally what you would say is, look we can’t make money there. We can’t make a go of it. We’re not making as much as we need to keep the team going,” says Aguirre. “None of that argument can be made. (The Chargers are) making plenty of money. They’re making more money than they’ve ever made.”
According to numbers from the statistical website www.statista.com the Chargers have seen an increase in revenue every season for the last 15 years. In fact, the team’s revenues reportedly doubled from $131 million in 2001 to $262 million in 2013.
NFL Executive Vice President Eric Grubman has even said, “We have a healthy business. We are not losing money. We have never said that.” As a fun side note, Grubman’s Twitter handle is @EricNFLMoney.
Another reason for relocating the Chargers, says Aguirre, is the possibility of giving the San Diego market another NFL franchise.
“There’s no way for them to leave under the circumstances of the NFL saying we won’t give you another team. If the NFL were to say well we’ll give you another them, that’s a different story. They’re basically exploiting the fact that the NFL controls the number of teams. If you restrain trade it’s OK if it’s reasonable. If a monopoly restrains trade, then that’s a much more difficult case to make.”
Once again, Grubman’s response to whether or not San Diego would get an expansion team was less than favorable. He told the San Diego Union-Tribune it’s a “low probability.”
So if the groundwork for the lawsuit is there, another big question is money. Attorney fees are not cheap so who pays for it? Although it could be a taxpayer lawsuit, the taxpayers could avoid footing the bill.
“The taxpayers would not pay the legal fees unless the city council decided to invest in it and do it themselves,” says Aguirre. “Then it would be a combination of the city attorney and outside counsel. It could be structured in a lot of different ways.”
Taking this approach could get messy, and would likely be used only in a worst-case scenario to help level the playing field against the financial superiority in Los Angeles.
“It would not be requiring the city of San Diego to try to match the economic abilities of a much larger market like Los Angeles,” says Aguirre. “That’s the idea, to use all the arsenal if necessary.”
Aguirre would likely not be involved in the actual litigation. He suggests the same attorneys who helped the NFL players in 2011 take the lead on a lawsuit.
So what would be the underlying motivation of such a drastic course of action? To force the Chargers and local government to work together and truly pull out all the stops to make a stadium deal in San Diego.
“We are only trying,” says Jauregui, ”to help keep the Chargers in San Diego.”
Boltman is simply to make sure the Chargers don’t bolt, man.