Could Mark Cuban Sue Baseball?

Mark Cuban's incredibly high bid for the Cubs is really mucking everything up. Major League Baseball likes its old-boy owners, its old money, its quiet yes-men, and it doesn't like to have its quaint club disrupted by those of ill-repute. Mark Cuban's antics do not endear him to Major League Baseball. After all, when was the last time you saw an MLB owner take pregame press questions on his treadmill?

But Mark Cuban is the highest bidder for the Cubs, which means there's a decent chance that Sam Zell -- a shrewd profit-maximizer if ever there was one, and a new owner without loyalty to the league -- will be more than fine selling to Cuban for the highest price. And if MLB's owners vote against the sale, Cuban and Zell have a strong legal case to make against MLB's antitrust exemption.

Squawking Baseball brought up the issue yesterday -- could Cuban sue baseball? Or, could MLB be so afraid of having its antitrust exemption challenged in court that it'd approve Cuban simply to avoid litigation?

This is where you expect me to tell you the answer, but because I'm a blogger and not a lawyer, I don't actually know it. Ah, but there are people who do -- in fact, our own Craig Calcaterra, who is both a blogger and a lawyer (a vicious combination), wrote about it on his personal blog, Shysterball, just a few months ago. He wrote:

Yes, there is an antitrust exemption, but the only court to ever consider the matter held that the exemption does not apply to the purchase and sale of franchises. That came in Piazza v. Major League Baseball, 831 F. Supp. 420 (E.D. Pa. 1993), in which some gentlemen from Pennsylvania tried to buy the Giants and move them to Florida. Then-Giants' owner Bob Lurie was going to sell, but MLB stepped in and indicated that it would not approve the sale. The buyers sued, arguing (among other things) that baseball illegally restrained free trade in the market in which baseball teams are bought and sold. Baseball argued that it was allowed to do this pursuant to the antitrust exemption. The trial court agreed with the would-be buyers during the preliminary stages of that case, ruling that the antitrust exemption didn't apply to the purchase of teams. Granted, this wasn't a final decision on the merits. Rather, the court basically ruled that if the plaintiffs could prove that MLB wrongfully thwarted the sale -- say, that baseball had no legitimate business basis for excluding a potential ownership group --they could win.

Of course it never got that far. Having seen that its antitrust exemption was in peril, baseball settled with the plaintiffs, paying them $6 million for their trouble, and the case went away. Since that time, baseball has continued to approve or deny "ownership applications" as though they were country club memberships as opposed to the restraint of the sale of goods in a free market. It has been able to get away with this because, to my knowledge, no one since the Pennsylvania people in the Piazza case have raised a fuss over a team sale, and with no dispute, there can be no court case.

In other words, Major League Baseball really, really does not want a judge to rule on its antitrust exemption in court. The lingering threat from Cuban and Zell -- who, combined, have all the cash in the world needed to take on Bud Selig -- could well be enough to grant Cuban the access to the league's insider club he may previously not have gotten.