Ohio Revised Code Section 9.67 prohibits professional sports teams in Ohio, where the Browns’ stadium was built using public tax funds, from relocating.
Last month, an article titled “How a 1996 Ohio Law Could Save the ‘Buffalo’ Bills” floated around the idea that a New York version of Ohio Revised Code Section 9.67—more commonly known as the “Art Modell Law”—has the potential to stop the Buffalo Bills from relocating if they cannot reach a deal with Erie County over the proposed 1.5-billion-dollar stadium. That would be the worst case scenario and as of now, the Bills relocating is not on the table. In fact, Governor Kathy Hochul has indicated that she expects to incorporate a term sheet for the new build into the budget proposal in January. The article is a great read and an interesting topic, however, this law student is unpersuaded that the law is exactly constitutional. But does that mean it wouldn’t work? No! So, could it? In nothing short of the most lawyer-like answer: it depends.
There’s nothing more heartbreaking than losing your beloved sports franchise to a different city. Just ask Atlanta Thrashers fans, Seattle Super Sonics fans, and even Montreal Expos fans. (But fear not Montreal, you may be getting professional baseball soon!) In 1995, the Cleveland Browns faithful experienced this heartbreak when Art Modell, the team’s owner, announced the team would be relocating to Baltimore after dissatisfaction with the team’s stadium. After the team moved on, Ohio legislators got to work. They wanted something that would keep professional sports teams in the state, especially when public tax dollars were used to build their stadiums. That’s when Ohio Revised Code Section 9.67 was born.
Nicknamed the “Art Modell Law,” (for obvious reasons) Ohio Revised Code Section 9.67 provides:
No owner of a professional sports team that uses a tax-supported facility for most of its home games and receives financial assistance from the state or a political subdivision thereof shall cease playing most of its home games at the facility and begin playing most of its home games elsewhere unless the owner either:
- Enters into an agreement with the political subdivision permitting the team to play most of its home games elsewhere;
- Gives the political subdivision in which the facility is located not less than six months’ advance notice of the owner’s intention to cease playing most of its home games at the facility and, during the six months after such notice, gives the political subdivision or any individual or group of individuals who reside in the area the opportunity to purchase the team.
Essentially, then, the law prohibits professional sports teams in Ohio, whose stadium was built using public tax funds, from relocating unless the relocation is within the state.
Is it Constitutional?
Without the law being formally challenged, the answer is not 100% known. However, after a small analysis, it is likely that a court would find the law to not be constitutional as it violates the dormant commerce clause of Article 1, Section 8 of the Constitution. In short, the commerce clause provides Congress the power to: “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” As the Cornell Legal Information Institute provides, within this clause, there is an implicit meaning which prevents states from “passing legislation that discriminates against or excessively burdens interstate commerce. Of particular importance here, is the prevention of protectionist state policies that favor state citizens or business at the expense of non-citizens conducting business within that state.”
An analysis of constitutionality under the dormant commerce club is threefold. First, a court must determine whether the state law is discriminatory on its face, has a discriminatory effect, or a discriminatory purpose. If the court determines it does, then it must determine if the statute serves an important state interest and whether the statute is more efficient of producing the desired outcome than any other alternative. Lastly, the state has the ability to justify the statute by showing that no alternative to protecting the local interests exists.
To keep this brief, I will provide a quick and dirty walkthrough of the analysis—it is not polished. The first issue is determining if the state law has a discriminatory effect or purpose, or if it is discriminatory on its face. As a Toledo Law Review article titled: Modell, Money, and Movement: A Constitutional Perspective on the Modell Law’s Effect on Sports Team Relocation (sorry, I can’t seem find a free copy, the citation however, is 51 U. Tol. L. Rev. 617) written by Benjamin A. Colsten, points out, the law does not appear to be discriminatory on its face; it seems to apply the law equally to all Ohio-based franchises. Rather, the problem is that it “has a discriminatory effect as it potentially permanently prevents an out-of-state entity from relocating a sports franchise.” The next step would be to determine if the statute serves an important state interest. While sports franchises make us feel good (or if you’re a Philadelphia sports fan, make us feel bad more often than not) and having public tax dollars go to important purposes and not just empty stadiums, it’s hard to argue that the law protects an important state interest. At the end of the day, sports franchises just don’t generate as much money for their cities as we think they do. Several scholars have stated that if franchises didn’t exist in some cities, people would spend the same money elsewhere in the city. Simply stated, franchises are fun to have, but arguably they don’t provide any tangible interests justifying state action. Thus, the law could be viewed to fail the second test of the analysis and be held as unconstitutional. (If you disagree with this, please feel free to drop a comment below and explain why. I definitely want to hear your opinion on this point!)
Why it COULD still work
However, just because it’s likely unconstitutional doesn’t mean it wouldn’t have the power to keep the Bills in Buffalo. It could be used as a delay tactic, delaying the process of the Bills relocating to a point where they’d probably just get a stadium deal done anyway.
Think about it: if New York legislators were to pass a similar, if not verbatim, law it would have been unchallenged. No one has brought a challenge to the Ohio law to challenge its constitutionality, so if the Bills (and the NFL) were to, it’d be the first time. Think about how long it would take for the dust to settle—years at a minimum. Civil suits take a long time from filing date to judgment, upwards of two years. Then the appeal process could take even longer. It’d probably take so long that the outcome would be moot; the Bills would probably have agreed to a new stadium deal and would be playing in Buffalo for the foreseeable future. In fact, a court might not even rule on the matter just because there’d be no point to – a major win for the viability of the law. In short, it could still work, not because the law is constitutional, but rather because of the sheer amount of time it would take to resolve any challenge. Again, this is a worst case, dooms-day scenario, which does not seem likely, as the Bills have not threatened the city with a move and the negotiations, thus far, have been positive and productive.
Photo via: Harry Scull Jr., Buffalo News
3L & Editor-in-Chief of the Buffalo Environmental Law Journal. Sad fan of the Philadelphia sports teams and Tottenham Hotspur. I enjoy writing and learning about the intersection of sports and business law, with a focus on the NHL. H2P!