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State ex rel. DeWine v. Precourt Sports Ventures LLC

Court of Appeals of Ohio, Tenth District

June 21, 2018

State of Ohio ex rel. Ohio Attorney General Mike DeWine et al., Plaintiffs-Appellees,
v.
Precourt Sports Ventures LLC et al., Defendants-Appellants.

          C.P.C. No. 18CV-1864

          Mike DeWine, Attorney General, Bridget C. Coontz, Randall W. Knutti, and Samuel C. Peterson, for State of Ohio.

          Zach Klein, City Attorney, Joshua T. Cox and Charles P. Campisano; Bricker & Eckler LLP, Jennifer A. Flint, Drew H. Campbell, Matthew W. Warnock, and Bryan M. Smeenk, for City of Columbus.

          Bailey Cavalieri LLC, Dan L. Cvetanovich, James G. Ryan, and Jolene S. Griffith, for Precourt Sports Ventures LLC, Team Columbus Soccer LLC, and Crew Soccer Stadium LLC.

          Hahn Loeser & Parks LLP, Marc J. Kessler, and Jeffrey A. Yeager; Proskauer Rose LLP, Bradley I. Ruskin, Mark D. Harris, and Jennifer E. Tarr, for Major League Soccer LLC.

          DECISION

          PER CURIAM.

         ON MOTION TO DISMISS APPEAL AND MOTION TO EXPEDITE APPEAL

         {¶ 1} Defendants-appellants, Precourt Sports Ventures LLC, Major League Soccer LLC, Team Columbus Soccer LLC, and Crew Soccer Stadium LLC, appeal from an order of the Franklin County Court of Common Pleas in this action concerning the prospective relocation of a professional soccer team, the Columbus Crew SC. The plaintiffs-appellees are the City of Columbus and the State of Ohio ex rel. Ohio Attorney General Mike DeWine. The matter is now before the court on appellees' motion to dismiss the appeal as premature. Also before us is appellants' unopposed motion to expedite the appeal.

         {¶ 2} Appellants are organizations involved in the ownership, management, and operation of the Crew. Precourt Sports, under Major League Soccer's ownership structure, is the "operator/investor" for the Crew (Amended Complaint at ¶ 11), and MLS is the "owner." Id. at ¶ 12. Appellant Team Columbus Soccer LLC owns MAPFRE Stadium in Columbus, site of the Crew's home games. Appellant Crew Soccer Stadium LLC leases 15.25 acres of state-owned property on which the stadium sits.

         {¶ 3} The city and state initiated this matter with a complaint for declaratory judgment and preliminary and permanent injunctive relief filed on March 5, 2018, followed by an amended complaint on March 12, 2018. The amended complaint anticipates a proposed move of the Crew from Columbus to Austin, Texas, and seeks to apply R.C. 9.67, which imposes certain obligations on professional sport teams operating in Ohio. The general object of the statute is to restrict the sudden abandonment of Ohio markets and fan bases by teams that have benefited from tax subsidies or other public financial assistance. To this end, the statute requires that such teams provide a six-month advance notice of any intent to move, and imposes a further obligation to give local government or investors an opportunity to purchase the team.

         {¶ 4} The amended complaint generally alleges that Precourt Sports and MLS are subject to R.C. 9.67 because the Crew has played home games in a tax-supported facility (MAPFRE Stadium) and accepted financial assistance from the city and state. The complaint further alleges that Precourt Sports has announced its intention to move the Crew to Austin unless the City of Columbus or private investors can provide guarantees that the Crew will play in a new downtown Columbus stadium.

         {¶ 5} According to the complaint, Attorney General DeWine notified Precourt Sports on December 8, 2017 by letter that R.C. 9.67 imposed certain obligations on the Crew owners and affiliated entities, including the requirement to give six months' notice to the city regarding the team's intent to stop playing at the publicly supported facility, and that local purchasers or investors must be given the opportunity to purchase the team during that period.

         {¶ 6} Appellees filed a motion on April 9, 2018 asking the trial court to equitably toll the running of the six-month notice-and-negotiation period of R.C. 9.67. This request was based on appellants' alleged delaying tactics during and prior to litigation; appellees contended that this delaying conduct had the object of neutralizing the statute. Appellants filed a motion to dismiss the amended complaint on April 19, 2018, asserting that the statute is both unconstitutional on its face and inapplicable to the Crew entities. The parties also traded motions to compel and stay discovery; much of the discovery objected to by appellants concerned inquiries into the ownership structure and operational relationships involving the Crew and MLS entities.

         {¶ 7} On May 8, 2018, the Franklin County Court of Common Pleas entered an order "(1) granting in part plaintiffs' motion to toll R.C. 9.67; (2) granting in part defendants' motion to stay discovery; (3) holding plaintiffs motion to compel discovery in abeyance; and (4) deferring ruling on defendants' motion to dismiss." The trial court deferred its decision on the essential issues raised in appellants' motion to dismiss: "At the outset, the Court makes clear for the purpose of ruling on instant motions, the Court is not at this time commenting on the constitutionality of R.C. 9.67. Nor should it be inferred in any way from ...


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