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respect wrigleyTo date, any reasonable discussion of the Chicago Cubs/rooftops saga necessarily included an admonition that, without actually seeing the contract between the parties, drawing conclusions too aggressively would be a mistake.

Well, we still haven’t seen the full contract, but CSN’s Dave Kaplan has given us the best peek we might ever get.

Against the bubbling backdrop of failed negotiations, one lawsuit, and the Cubs filing for a permit to erect an outfield sign at the very heart of the dispute, Kaplan secured a copy of the agreement between the Cubs and the rooftops, which has purportedly provided the grounds for the rooftops to keep selling tickets for views into Wrigley Field in exchange for 17% of their gross receipts. It goes without saying: you must read Kaplan’s piece.

An important caveat up front from a former lawyer: seeing snippets of the contract, and reading Kaplan’s thoughts (as well as those of anonymous attorneys with whom he spoke), has some value, but don’t go too far. Isolated contract provisions, without seeing the entire context (of the contract, the negotiations that led to the contract, and the dealings of the parties before and during the contract), can be misleading. Even for the attorneys involved in these negotiations, nothing is definitive. You may notice that I frequently straddle the fence and talk about “the gray.” Well, my background in the law is a primary reason. Very, very little in the world of law/business/sports/whatever is black and white.

Now, then. Let me offer the best I can.

Per Kaplan’s take, and the attorneys with whom he consulted, the key provision in the contract as they relate to the renovation of Wrigley Field and the erection of outfield signage is the following (this is the one we’ve heard obliquely referenced before by the Cubs):

6.6 The Cubs shall not erect windscreens or other barriers to obstruct the views of the Rooftops, provided however that temporary items such as banners, flags and decorations for special occasions, shall not be considered as having been erected to obstruct views of the Rooftops. Any expansion of Wrigley Field approved by governmental authorities shall not be a violation of this agreement, including this section.

For the term of the contract – which runs through 2023 – the Cubs may not erect anything “to obstruct the views of the Rooftops.” I already see an angle I like for the Cubs. I would argue that, to the extent the Cubs are erecting large outfield signs that happen to obstruct the views of the Rooftops, the Cubs are not erecting the signs to obstruct the views. The obstruction is merely incidental.

Setting that weak argument aside (the meaning of a two-letter word is important, but can get you only so far), everyone immediately sees the big one: “Any expansion of Wrigley Field approved by governmental authorities shall not be a violation of this agreement, including this section.”

Boom. Dead bang winner for the Cubs, yes? After all, the renovation project – including the outfield signage – has been approved by governmental authorities. Should the Cubs put up the signs pursuant to those approvals, there’s no violation, right?

Well, as Kaplan points out, the rooftops’ argument is likely to be that the clause in Section 6.6 is referring only to true “expansions” of Wrigley Field, i.e., making the park larger to include more seating. Who knows? Perhaps when the contract was being negotiated, this was indeed the intention of the parties. If a judge – or an arbitrator, as the case may be* – sees ambiguity in the plain language of the contract, he/she may do some external interpreting, including by digging into what the parties meant when they wrote that provision in the first place (and, if the Cubs did the drafting, that ambiguity would be construed against them).

*(Kaplan confirms that the contract does contain a mandatory arbitration provision, which is good news for anyone wanting an expeditious resolution if there is a legal battle. Arbitration, unlike court, tends to move more quickly (though not always). Then again, the rooftops (or the Cubs) could challenge the enforceability of the arbitration provision on any number of theories, dragging things out. So, actually, it’s not actually certain that the requirement of arbitration will speed things up. See? Gray.)

I see at least two serious problems with this argument for the rooftops, however. First, as discussed by Kaplan, the Cubs have gone to great lengths to frame what they are doing in the outfield as an “expansion.” Indeed, the Cubs are literally bumping out the walls at Wrigley as part of the installation of signage (which increases or “expands” the footprint of Wrigley, and the usable indoor space). Now we know, by the way, why the rooftops weren’t immediately on board with the bump-out plan, which was designed, in part, to reduce the impact of the signage obstructions (i.e., the rooftops probably knew that made any “expansion” argument more difficult for them).

Kaplan even aptly references the language used when City Council approved the renovation plan (emphasis mine):

Specifically, but without limitation, Applicant shall have the right to expand the Wrigley Field bleachers to install (i) a new video board in left field, which may include an LED sign, a neon illuminated sign above it and two light towers to assist in outfield lighting; and (ii) a neon sign in right field, which signage has been approved by the Commission on Chicago Landmarks and, in addition to being part of the bleacher expansion, and along with all other signage contemplated by this Planned Development, is integral to the expansion and renovation of Wrigley Field and the development and redevelopment of the Property as contemplated herein.

The language used by City Council is not dispositive, but it’s further support that the signage – without even considering the wall bump-outs – was designed to be considered an “expansion” of the Wrigley Field bleachers.

The second problem I see with the rooftops argument relates to Section 6.2 of the agreement. While I don’t really see Section 6.2 as quite as critical as Kaplan (at least not for the reasons discussed), it could conceivably limit the Cubs’ exposure. Which is nice for them.

More importantly for this particular discussion, Section 6.2 presents a serious problem for the rooftops in relation to that all important “expansion” word. Recall, to avoid being slam-dunked by Section 6.6, the rooftops would likely have to argue that “expansion” in that section meant the equivalent of “seating expansion.” The problem? In Section 6.2, the parties explicitly discussed seating expansions as a distinct thing from expansions, in general:

If the Cubs expand the Wrigley Field bleacher seating and such expansion so impairs the view from any rooftop ….

If “expansion” always and necessarily meant “seating expansion,” then there was no reason to write Section 6.2 in the way that the parties did. The law, however, presumes that parties drafting a contract say what they mean, and don’t include surplusage. In other words, the parties specified in Section 6.2 that they were referencing “bleacher seating” expansions, and not any other kind of expansion. That means that, in Section 6.6, when “expansion” is referenced without any kind of “seating” qualifier, the parties mean any kind of expansion. Bumping out the walls? Adding signage? Knowing that new seating is not required for an “expansion,” to me, those are pretty clearly expansions.

So, in sum, based on the portions of the contract we’ve now seen (presuming they are accurately characterized by Kaplan, and I have no reason to doubt him), the Cubs appear to have a very strong position. Why, then, would the rooftops not have settled by now? Well, it could be as simple as “when the business is on the line, a company will do anything to try and preserve itself, even in the face of long odds.”

Or it could be that the rooftops’ available legal challenges here are not limited to the contract. As I guessed after the Convention, it’s possible that the rooftops will argue that the Landmarks Commission (or another governmental body) lacked the authority to change the landmark status of the bleachers (remember all of that “the sweep and contour of the bleachers” talk?). A lawsuit on that basis would have nothing to do with the contract, and could see the Cubs – and the City of Chicago – facing down the rooftops in court.

In other words, the fact that the Cubs appear to be in a very good position with respect to the contract arguments may not be as impactful as we hope. Once again – sigh – we’ll just have to see what happens.

  • TWC

    Obviously the Cubs only leaked this to Kaplan because they expect to lose this battle in court; this way they can claim that they “put up an effort” only to come in second.

    • mr. mac

      Ha, come on, TWC!

    • http://www.michigangoat.blogspot.com MichiganGoat

      It’s always impossible to replicate a conspiracy and hater comment but that’s a better than most.

    • Chef Brian

      Ha, TWC. You definitely captured the hater/conspiracy theory essence around here.

    • Kyle

      You joke, but the Cubs sure haven’t acted like a team confident in winning the legal battle.

      • DarthHater

        Hell, I try to avoid litigation all the time in cases I am quite confident I could win, if I had to. Litigation is a slow, expensive, pain in the ass.

        • hansman

          Yes, and isn’t that, even if you are confident you can win, there is a still a chance you could lose? Then, God forbid you get a Sox/Cardinals fan-judge.

          • DarthHater

            I have seen arbitration cases spend a couple years at the outset just fighting over who is going to be the arbitrator.

            • hansman

              When you are planning on owning the Cubs for generations, a 1-year delay in getting something started hoping to avoid a multi-year legal battle, isn’t the worst thing in the world.

        • Kyle

          “Slow,” “expensive,” and “pain in the ass” also describe not starting your critical expansion process for an entire offseason. The Cubs under Ricketts have a talent for locking in the downside they are trying to avoid.

          Side note, and this is funny: I’ve received a few annoyed flames this offseason by referring to it as an “expansion” and not just a “renovation.” Suddenly, it’s a saving grace. I am amused.

          • DarthHater

            Presumably, their lawyers are conducting a rational risk analysis and advising the Cubs accordingly. We don’t have remotely enough facts to begin to speculate about how to weigh the various risks. But I tend to assume that if the Cubs thought the potential risks of delaying commencement of the renovation (oops, I mean expansion) outweighed the potential risks of litigating, then they would not have pursued settlement for this long. On the other hand, some of the language in that contract is pretty poorly drafted, so maybe the Cubs’ lawyers aren’t really that smart.

            • hansman

              What?! The Cubs actually think through things? Possimpable.

              • YourResidentJag

                Since the 2010 offseason. Glacially, maybe.

            • Kyle

              The Ricketts Cubs have loooong since lost my benefit of the doubt.

              • DarthHater

                That doesn’t mean that the opposite of what Ricketts does is more likely to be correct, it just means that the fact he made a particular choice is of no weight one way or the other.

                • Kyle

                  Absolutely.

              • Tommy

                I’m sure the Ricketts are just devastated over this.

                • YourResidentJag

                  Why should they be? They aren’t in the business of catering to the whims of any particular fan.

          • md8232

            Expanovation. Nuff said.

  • Sandberg

    It can’t be said too often. You do an amazing work on this site.

    • http://www.michigangoat.blogspot.com MichiganGoat

      +1 infinity take a bow Brett.

    • DarthHater

      Yea, Bert, way to plagiarize the expansion/seating/section 6.2 analysis that I posted here last night. ;-)

      • http://www.bleachernation.com Brett

        I’ll have to search your name to compare notes – unfortunately I’m not much of a night owl these days. :)

        • DarthHater
          • Napercal

            Great analysis by both of you. I wonder if the contract was originally drafted to be vague so as to “punt” on these issues just to get an agreement in place at the time it was signed? As a former municipal official, the inclusion of the word “expansion” in the ordinance is not an accident.

          • Napercal

            It said that the ordinance was approved 49-0. Did Tunney not vote? Or did he vote in favor? While not definitive, it could shed light on what the Council thought they were voting on.

    • salesguy

      Agreed very impressive analysis.

  • http://www.michigangoat.blogspot.com MichiganGoat

    Great analysis Brett, as I joked about last night the word EXPANSION will become a new Cubbie term that we will get tired and never forget. I still guess eventually the Cubs will lower the revenue sharing from 17% to somewhere between 12-15% and the rooftops would be foolish to turn that down.

    • Joshua Edwards

      I wonder if the rooftops would be upset to see the Cubs EXPANDING their win total because of the EXPANSION.

  • Chef Brian

    I think the roof top owners would be very foolish to take the City of Chicago to court, considering how many licenses and permits, etc they get from the city. The city can apply pressure from all the avenues including the Health Dept., liquor board, among many other things. They have a lot of incentive to play nice. I really believe they are buying off more than they can chew on this. Besides the fact that they are losing the PR battle badly.

  • Jon

    “Now, I am not a lawyer (although I did get accepted to law school way back when and my late father was a very successful attorney),”

    He really is in love with himself, isn’t he?

    • CubFanBob

      Kinda reminds me of another poster here

    • Edwin

      Now, I’m not a lawyer, but I have watched The Rainmaker and My Cousin Vinny several times, so I’m pretty sure I’m qualified.

      • ssckelley

        Not a lawyer but I did sleep in a Holiday Inn Express last night.

    • Brocktoon

      In a sea of chicago media tools, Dave Kaplan esquire laps the field in terms of self importance and ugliness

    • Brocktoon

      I mean holy s### “got into law school?” Who didn’t? getting into law school means approximately nothing when it comes to being able to read and interpret a contract

    • Argonzo

      It is kind of sad he has to do that bit of self-affirmation.

  • Johnny Chess

    I’m not a Lawyer but…. You’re not a Lawyer
    I play one on TV
    My Brother’s a Lawyer
    I watch LA Law on TV
    I’ve been to court for a speeding ticket
    So, I think I can say without a doubt that the
    Rooftops contract is ……

    • Brocktoon

      All Aramis Ramirez’s fault?

      • Johnny Chess

        You don’t want to go down that road so Let’s, Aramis was signed by the Brewers who as we know are famous for Brats and SAS age. Well, it seems Chicago has a little Hot dawg place which is near? that’s right Wrigley. Now the owner of that establishment just happens to be a Rooftop owner. Needless to say he also spends time where? Milwaukee, that’s right. Now he just happened to be at a Brewers game (3rd base side) when suddenly someone sitting in front of him held up a foam finger. Naturally his view was blocked so he paid a guy $17 bucks to change seats with him. Well he thought he had it made until the cotton candy guy came by. Well, what a commotion then out of the blue Aramis says hey knock it off, that alarmed security who decided to throw this guy out, and as he was being escorted out he threatened to sue and complained that his view was being blocked. It was then that security informed him that the ticket was a contract and gave them the right to remove unruly fans. It certainly didn’t help that he was wearing a Cubs pissing on the Brewers cap. Well by the time he got back home his lawyer informed him that he had no right to expect a 100% view from the seat location he had purchased and furthermore he was not entitled to said view in the first place. Moral of the story rooftop supporters, Just be glad you can see at no additional cost to you.

        • DarthHater

          [img]http://static.tvtropes.org/pmwiki/pub/images/Cool_story_bro_1359.jpeg[/img]

          • YourResidentJag

            Lol!

  • hansman

    I think it’s also important that the Cubs have gone to great lengths to reduce the blockage of the signs. I would like to think that a judge or arbitor would see that and tip the scales in the Cubs favor. But, I don’t know how much the actions of the parties since the contracts have to do with the decision.

  • Johnny Chess

    I think you can sum up the Rooftops position with one statement It depends on what the meaning of the word “is” is

  • Spoda17

    Brett, one thing that jumps out to me in section 6.6 is that the word “views” is not clearly defined. One could make the argument that the contract does not mention unimpeded views of games. Just throwing that out there… They technically still can “view” Wrigley Field…

  • http://fullcount1544.blogspot.com FullCountTommy

    Obviously, like Brett said, we don’t know the context, but I feel MUCH more confident about this whole situation than I did yesterday

  • BenRoethig

    Section 6.6 is vague enough where the lawyers from both sides could be coming at this from a perceived position of strength. If they don’t settle (which I find likely, lawsuits or threat there are frequently used as a negotiating tactic in contract law), it’ll be up to the arbiter to figure out what constitutes an expansion and that could be very open for interpretation.

  • JB88

    Interesting write-up and appreciated. Your last paragraphs threw me though. I’m trying to envision the lawsuit the rooftops would bring relating to the Landmark Commission piece. I frankly don’t see how that would be successful. First, they’d have to lodge an administrative challenge, but I don’t know that they’d have standing to do so in the first place. Second, assuming they tried to sue the Cubs and the City in the same suit, I’d think they’d need to show that in some way the City knew the terms of the Agreement and somehow acted fraudulently or conspired with the Cubs to improperly grant the Cubs the right to expand the bleachers. (I know that you said the suit might not involve the contract, but I can’t envision such a suit against both entities at the same time NOT involving the contract.)

    The problem with that is that the Cubs have expanded the bleachers multiple times since the Agreement was entered into. I just can’t really see any set of facts under which the rooftops could sue the City (i.e., Landmark Commission) and the Cubs in the same lawsuit. Separate lawsuits? Maybe. But together? I just don’t see a set of facts under which the rooftops could impute liability against the Cubs and the City.

    • http://www.bleachernation.com Brett

      It’s not a road I’m going to go down too far, because it’s extremely law-heavy, but I think it was worth noting – that’s all I was trying to do – that there can be alternative theories to blocking the signage not tied to the contract’s language.

      I don’t pretend to know the applicable administrative or statutory law (let alone the attending case law, comments, etc.), but, *in the abstract*, it’s not hard to envision some kind of argument that the City can’t alter landmark designations in the particular way that they did.

      • JB88

        Sure. And I agree with that (though I think that is likely a loser of an argument for the rooftops). I just can’t see the Cubs ALSO being liable under that same set of facts.

        Honestly, after seeing excerpts of those provisions, I think the Cubs’ chances of winning any future lawsuit are pretty darn good, and signed, sealed, and delivered by the City Council last year.

        • http://www.bleachernation.com Brett

          Liable, totally agree. Renovation scuttled? Maybe. That’d be the problem, not any kind of damages.

          • JB88

            The only way that the renovation is being scuttled is if the rooftops can get an injunction (or the Cubs’ foolishly wait on the rooftops to start the renovation), and, given that likelihood of success is the crux of any TRO, I can’t see the rooftops being successful UNLESS they can first overturn the Landmark Commission’s decision regarding the expansion.

            And, if that happened (i.e., the rooftops successfully challenged the Landmark Commission’s decision), then it would be somewhat reckless for the Cubs to even start the renovation.

            • http://www.bleachernation.com Brett

              “And, if that happened (i.e., the rooftops successfully challenged the Landmark Commission’s decision), then it would be somewhat reckless for the Cubs to even start the renovation.”

              That’s my current working theory on why the Cubs haven’t started the “other” parts of the renovation after all this time – the fear of having the whole thing blown up after putting shovels in the ground.

              • Napercal

                No way can the construction start with the threat of litigation. Although the construction work seems simple, it really is quite complicated and has a very tight window. There is no wiggle room in the delivery date. The construction schedule is dependent on staging various parts of the project. For example, some elements of construction simply cannot be done after mid-December due to the weather. That leaves about a 10 week window (6 if the Cubs get to the World Series) to complete some of that prep work. That is a tight window under any circumstance. If that prep work is delayed or can’t be completed by mid-December it is possible that work wouldn’t be renewed until early spring which could leave the playing in a bit of a predicament. There are also issues with scheduling sub-contractors. Those folks move on to other jobs once the job at hand is completed. So if the project got shut down, the subs aren’t going to just sit around and wait for the litigation to be resolved. So you lose your subs and end-up paying through the backside for replacements.

          • pete

            A significant problem with all of this is that, from what I have read, the contract calls for resolution by arbitration. While you can predict a civil suit within certain parameters, and can also appeal from a finding that is patently inequitable and/or is wrong on the law, arbitration is all but unappealable. Both sides would be putting their futures until 2023 into the hands of a mutually agreed-upon arbitrator. That is the definition of a crapshoot, which is a primary reason why trial lawyers prefer a civil suit to arbitration. Case in point – see how no legal experts think A-Rod’s present suit will survive a motion to dismiss because it is basically appealing an arbitration.

            • http://www.bleachernation.com Brett

              In my experience, arbitrations in this kind of context are pretty “safe.” They tend to proceed very similarly to a traditional lawsuit, and, like lawsuits, very few actually proceed to an arbitrators decision (let alone reach the level where one side would want to pay to appeal the substance, if it had been a traditional suit).

              • pete

                I agree in part. All civil matters, be they civil suit or arbitration, are “safe” in the pleadings stage and through discovery. However, the hearing is still problematic. I have partners who always reject voluntary arbitration. Arbitration has a reputation, fair or not, of splitting the baby in its award, and it seems that this is a fairly “non-splittable” scenario. If this is filed, it seems to have higher than ordinary odds of proceeding to panel, unless one side comes to the conclusion it is an absolute loser. And I cannot help but think the rooftop owners have a nothing to lose mindset.
                Also, I presume that keeping this matter out of the public’s eye is a key issue, at least for the Cubs. I am sure that all the parties are taking that into their calculus but have no idea how.

      • Mike F

        Absolutely, as a matter of course they drag them into Circuit Court and test everything from the Landmark decision to the the ordinance changes…. If the Circuit Court rules against either side they can appeal and ultimately appeal to the IL Supreme Court.

        I don’t think either is likely due to time consuming nature and embarrassment. Ultimately RE will enforce a solution on both sides….

        • Mike F

          All if that under Administrative review…..

  • dash

    With all this going on, why has the City been so quiet on the issue lately?

  • twarman17

    Brett, the City and Cubs use of “expansion” after the contract was signed is irrelevant. All that matters under Illinois law is the intent of the parties at the time the parties entered into the contract. If that intent cannot be determined unambiguously in the “four corners” of the contract, then the court will look at documents (emails, memos, letters, etc.) from at or before signing and deposition testimony from the deal teams to determine the parties’ intent at the time they signed the contract.

    Also, whether the contract contains an attorneys’ fees shifting provision to the prevailing party will go a long way toward determining the rooftops’ willingness to proceed to litigation (assuming the entities or persons that signed the contract for the rooftops have assets). The rooftops will not want to risk paying both sides’ fees.

    • http://www.bleachernation.com Brett

      I appreciate the input, but you lost the forest for the trees there for a moment: the manner in which the City and/or Cubs designate the construction matters, not in terms of contract interpretation, but in terms of what is actually happening. Once the meaning of the contract is determined (expansion means X), we still have to determine if the Cubs are doing X.

      • DarthHater

        What they are doing is a factual question that is unaffected by what the the city council calls it. If they were just replacing the men’s room troughs with urinals and the city council called it an “expansion of Wrigley Field,” that would be worth zero weight.

        Here, what they are doing is an expansion not because of anything the council has said, but because it involves erecting large new structures in the bleacher area and increasing the overall footprint of the stadium.

        • http://www.bleachernation.com Brett

          You don’t think, in determining whether something qualifies as an “expansion” of a large, heavily-regulated facility, the court/arbitrator/whomever isn’t going to consider the opinion of that regulating body? It’s not at all dispositive, but it would absolutely be considered, among many other things.

        • PatTablerStoleMyBall

          I’ll take the devil’s advocate view on the meaning of “expansion,” looking at section 6.2. That section refers to “expansion” as a shorthand reference for “Cubs expand the Wrigley Field bleacher seating.” If that’s the first use of “expansion” in the contract, the rooftops could make a case that the meaning of the word is limited to the bleacher seating, not jumbotrons/signs.

          That interpretation is arguably consistent with the intent of the parties at the time. If you go back to 2004, the concern for the rooftops was about changes to the bleacher seating. The addition of a jumbotron or big signs in the outfield weren’t on the radar. The Cubs were still owned by the Trib, and dating back to time of Dallas Green the Cubs had resisted putting large video boards and ads in the park. Even the Under Armour ads on the bleacher doors weren’t added until 2007, after the Trib and Cubs had been sold to Sam Zell.

          Changes to increase bleacher seating were very much on everyone’s minds in 2004, though. The Cubs had been trying since 2002 to add seats to the bleachers, and the rooftop owners had opposed the expansion because they feared their views could be blocked. A scaled-back increase of about 1,800 seats finally began after the 2005 season.

      • twarman17

        The court will not broadly define what “expansion” means. The court will only decide whether the signage constitutes an expansion under the contract as determined by the intent of the parties at the time the contract was signed. The court will not define expansion any broader than the actual dispute in controversy. Since a jumbotron was likely not contemplated by the parties at the time the contract was signed (if it was the cubs transaction lawyers did a terrible job), this can obviously be a difficult task.

        • JB88

          I don’t agree with your analysis. When construing a contract you consider the four-corners of the agreement—not the subjective intent of the parties—and only if there is some ambiguity existing in the contract, only then do you look outside the contract to emails, letters, memos, deps, etc.

          And, as for construing the term “expansion,” a jumbotron absolutely fits into the definition of expansion. Since the excerpts provided are lower case, you have to assume that the word “expansion” isn’t a defined term in the Agreement. Assuming that is the case, you look to a dictionary for the definition of the term. A jumbotron or additional signage absolutely falls under that definition.

          (For example, Merrian-Webster’s defines “expansion” to be: “the act of becoming bigger or of making something bigger : the act of expanding.”)

  • Wilburthefirst

    Well done by both Kaplan and Brett. Provides excellent context to the situation and allows insightful speculation on why the parties have acted as they have.

  • fortyonenorth

    In a typical corporate scenario, would this type of (potential) litigation be handled by in-house attornies or a contracted firm? I tend to be cynical when it comes to hired lawyers because, in my experience, they think about fees first and wise counsel second. In other words, there seems to be a correlation between advice and revenue.

    • http://www.bleachernation.com Brett

      This would be an outside counsel situation (directed in the high-level stuff by the in-house counsel). Don’t let your cynicism get you: outside counsel, particularly in a case like this, care far, far less about their fees than their success (or perceived success) for the client.

      • Spoda17

        No chance I would be outside counsel for them now… it’s like -2, that’s too damn cold bro.

    • JB88

      This attitude is pretty well misplaced. Sure, there are some attorneys who are trying to bilk clients (just as their are business people stealing from the company’s shareholders, doctors taking improper benefits, teachers stealing school supplies, etc.), but the vast majority of attorneys are trying to win their cases (or do their client right in a transactional deal), not take money improperly from their clients. With clients like the Cubs, you win in the long run—not by improperly billing them or billing them exorbitant hours—but by developing a longstanding relationship where all of their legal needs are fulfilled by outside counsel. That’s a MUCH bigger payday than a one-off litigation.

      (For the record, as much as people like to knock attorneys, it is also one of the only professions that has an ethical code, mandating how attorneys act.)

      • http://www.bleachernation.com Brett

        “Some of my best friends are lawyers.”

        (But seriously: attorneys are no more likely to be “bad seeds” than folks in any other profession, in my experience. Lotta good, good people out there who just happen to also be good, good attorneys.)

        • JB88

          :)

          Well, given that my wife, her sister, and both of my inlaws are attorneys, that statement sort of fits.

          That said, most attorneys I know (and the vast majority of attorneys I face off against) respect and honor the profession and take great pride in being ethical attorneys.

        • http://www.michigangoat.blogspot.com MichiganGoat

          Yeah I have tremendous love, respect, and thankfulness to the attorney that handled my divorce but the cost a divorce was horrible I can’t imagine the cost this litigation will cost everyone. However it’s only money when compared to what a great attorney can do for your future.

  • twarman17

    For the Cubs, outside counsel

  • baldtaxguy

    Thanks for this info and analysis, very interesting. Having this background, it will be interesting to watch the next steps from both sides.

  • cubfanincardinalland

    I had my attorney look at this today. He agrees with you Brett. The key is 6.2, it establishes that seating expansion is just one of the ways to expand the stadium. Without another specific definition in the contract of what shall be deemed expansion, the rooftops are toast.
    He thought the only chance of any success would be to challenge the city in changing the landmark provisions. The contract with the Cubs is quite clear, if the city lets them expand, not much the rooftops can do about it.
    If the Cubs did offer to put the right field sign across the street last week, he is quite surprised the lawyers for the rooftops did not urge them to accept the offer. Perhaps some fissures between the left field and right field contingent.

    • Ivy Walls

      And precisely why I think the Rooftops only have one card to play for more $$ or consideration, to delay or threaten to delay expansion. The wildcard in all this is court and the decisions of judges and jury…but if there is an arbitration path and if the Cubs have this expansion clause….then they can slowly force the and of the parasite.

      I hate parasite businesses who do not actually take risks beyond the parasitic symbiotic relationship. Anyway seeking permits to expand will invoke 6.2, from there the process will work out as the threat of loss and legal representation gets real. If I were a rooftop I would change my business model to one of a high end restaurant bar, offer a close proximity experience to the game with possible partial views and be done with the direct relationship.

      • http://www.michigangoat.blogspot.com MichiganGoat

        I think the Cubs will negotiate a decrease in the 17% to end all this and the rooftops should be happy to save a few percent.

  • Jon

    I had my attorney look at this contract as well

    [img]http://static3.wikia.nocookie.net/__cb20110507215945/fearandloathingin/images/f/f3/Drgonzo.jpg[/img]

  • dan77

    The Cubs should take the last row in the bleaches give those seats free to kids and give them all a helium balloon with a long string and tell them to hold it for the whole game and let the rooftops look at that

  • Petre9

    Brett – Great post and I have been waiting forever for the contract (portions to leak). What is really interesting to me is the portions of the contract regarding the marketing and promotional exposure the Cubs and the rooftops agreed to. I certainly can see a scenario where the rooftops claim the agreement has been breached and it probably explains why the Cubs are named as a RID in the Ganis suit. If as Kaplan says that the Cubs have failed to joint market the rooftops for “several years” there certainly could be a claim for breach of the contract by the Cubs and entitle the rooftops to damages for interference with their business profits and expectancy right now (which may be set forth in the agreement itself). Also, it could strengthen an argument to add the Cubs to the Ganis suit. This could be a significant bullet for the rooftops have and that the Cubs could be leery of.

    • http://www.bleachernation.com Brett

      Eh. Without getting into too much deep legal joojoo, you usually have to try and preserve your rights under a contract much more quickly than “several years” later if the other party has been in breach. I don’t know what’s been going on behind the scenes with that piece, but it’s hard to see that being a significant lever.

  • kashbunker

    “the Cubs may not erect anything to obstruct the views of the Rooftops.” The clause does not specifically state WHICH views should not be blocked. View of the sky? View to Sheffield or Waveland? This is ambiguous! It does not state specifically that the Cubs may not erect anything that would block the VIEW INSIDE WRIGLEY FIELD!

  • ssckelley

    After reading all of this I am quite confident the Cubs will get this done. The only question is when?

  • Mamelons

    With the proposed signage, do we know exactly which rooftops are going to have their views limited? It cannot possibly be all of them. That being said, can they not replace the seats with large advertisements and make even more money that way? Sorry if this has been discussed before, just trying to sort through what possible compromises they might be willing to reach. I’m sure it is all based off $$$$.

  • Pingback: Cubs vs. Rooftops Is No Sure Thing | World Series Dreaming

  • Diehardthefirst

    The essence of the contract is a fee for unobstructed view- why else enter the contract? at the time it was important for both to have this relationship defined..any interpretation has to respect this intent or else the contract is meaningless- the fact that the parties have performed under this contract for so many years shows that the parties intended to be bound for the duration.

  • http://www.bleachernation.com Luke

    Kaplan is leaking more clauses allegedly from the contract.

    Plenty of quasi-interesting stuff (and some fairly bland stuff as well) in the new leaks, but the high points are probably an apparently complete version of the all important section 6, including the phraseology of 6.2 and 6.6.

    And a little nugget at the very end that says the loser in arbitration pays “the costs and fees of the Arbitration as well as the costs and fees of the prevailing party.”

    Nothing particularly earth shaking in the latest leak, but interesting nonetheless.

    And I’m still not sure, after reading it, what the end game for the rooftops is. Every new leak seems to make this a higher stakes gamble on their part.

    http://www.csnchicago.com/cubs/kaplan-key-points-cubs-wrigley-field-rooftop-contract

    • http://www.michigangoat.blogspot.com MichiganGoat

      It just screams of desperation at this point. Hoping to get some public support maybe but ultimately they are hoping to settle with the Cubs for either cash or a decrease of the revenue sharing agreement. If they might have to pay the litigation cost they’d be foolish to proceed further.

  • Diehardthefirst

    There is also an implied duty of good faith and fair dealing in every contract – to allow govt sanctioned expansion to defeat the primary purpose of the contract destroys the sanctity of contract which no arbitrator will do

    • Tommy

      I don’t know how you can say that government sanction expansion defeats the primary purpose of the contract when it was written into the contract, and the only way to be able to expand would be through government intervention.

      Even if what you said was true, can we all agree that we’re sick of the rooftops at this point?

      • Diehardthefirst

        The Cubs didn’t want the Rooftops but only way to get along was to lock them into a contract beneficial to both sides

  • Diehardthefirst

    In fact Ricketts is using Christie like bullying tactics of subverting government processes for private gain

    • http://www.michigangoat.blogspot.com MichiganGoat

      Oh my looks like the tin foil hat is on extra tight tonight.

      • YourResidentJag

        Who knows, maybe Christie actually does that?

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