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respect wrigleyIn response, presumably, to requests for the same, Dave Kaplan has produced more provisions of the Cubs/rooftop agreement over at CSN. Give them a read, because it’s interesting background info, if nothing else.

Now having a little more context (though still not the entire agreement or the dealings of the parties, so, caveats aplenty), I feel a touch more strongly about my conclusions yesterday. The short version was: I can see rooftop arguments, based on the contract, against the Cubs’ ability to erect outfield signage as part of the Wrigley renovation. But those argument strike me as unlikely to prevail, based on what we currently know. “Expansions” of Wrigley Field that have been approved by a governmental authority do not breach the contract with respect to the rooftops’ views into Wrigley.

I was particularly interested to see more context for Section 6, which generally entertains the possibility of “expansion,” both in the form of “bleacher seating” and some kind of other expansion that is not necessarily limited to additional seating. I still see nothing to suggest that Section 6.6 – the apparently key provision – should be read as limited to seating expansions, as opposed to any and all expansions of Wrigley Field (which the renovation and addition of outfield signage almost certainly is, under any standard). Further, the parties clearly contemplated that things might play out precisely as they have:

6.5 – Nothing in this Agreement limits the Cubs’ rights to seek approval of the right to expand Wrigley Field or the Rooftops’ right to oppose any request for expansion of Wrigley Field.

In other words, each of the Cubs and rooftops can, under the agreement, jockey for public support when it comes to expanding Wrigley Field in the way City Council approved. Each side did, and the Cubs received approval. The contract contemplates such a situation. Read together with Section 6.6 (discussed at length yesterday), it’s reasonable to conclude that the contract is designed for the governmental authorities in charge of expansion approvals to be the gatekeeper. Those governmental authorities have spoken, and the Cubs appear to be on strong footing in their application for a permit to erect the right field sign, as previously approved both by the Landmarks Commission and City Council, as a whole.

We’ll see how the rooftops respond if and when the sign actually goes up. I suspect that negotiations are still ongoing, and I suspect that nothing I’ve written here – or anyone has written anywhere on this subject – is unknown to both of the parties already.

What we still don’t know is precisely what arguments the rooftops* could make to scuttle the overall renovation, if it came to that. Is the contract their only lever? Is there a statutory or administrative law argument that the government’s actions were inappropriate? As much confidence as any of us might have about the Cubs’ contractual rights here, litigation is always uncertain. An agreement of some kind remains the most desirable outcome. Hopefully this is all still just posturing. Lots and lots of posturing.

*Hell, we still don’t yet know, for sure, whether the rooftops would all join together in an action against the Cubs, or if only the affected rooftops would be forced to go at it alone, possibly for reasons of legal standing.

  • Funn Dave

    But is adding signage technically “expanding”? If you’re adding bleachers or moving the outfield walls, you’re expanding. To me, putting a sign down is just putting a sign down.

    • NorthSideIrish

      The Cubs are moving the outer wall back to put the signs closer to the rooftops in order to reduce the impact to the views. So they are actually expanding the size of the stadium…

      • Funn Dave

        Oh that’s right. Thanks for the refresher.

      • Scombs

        But just because they are expanding the size of the stadium doesn’t mean that every part of the plan falls within the term “expansion.” So, yeah, they can move the outer walls, but that’s not the problem. As much as I hate to say it, I don’t see how adding signage can possibly fall under the term “expansion.”

        • http://www.bleachernation.com Brett

          I think you’re tripping yourself up. The issue is not whether signage is an “expansion.” The issue is whether governmental authorities approved an expansion – which means something distinct from “seating expansion” – that impacts the rooftops’ views. The whole project is the “expansion.”

          I do think the “do they have to bump out the wall first” question is an interesting one.

          • Scombs

            I see what you’re saying. I didn’t catch the last sentence of 6.6 during my first read-through. So, I take it that the governmental approval specifically included the proposed signage?

            • http://www.bleachernation.com Brett

              It did, indeed.

  • bonger0493

    If the Cubs have such a strong position in regards to adding outfield signage, why all this BS? If the definition of “expansion” includes bumping on the walls and adding signage, why haven’t they put the signs up?

    • Patrick W.

      Specifically because they are afraid the Rooftops owners will challenge the zoning in court, and appeal to a higher authority. That would likely result in a judge issuing a stay order, halting all building, while they figure out who’s right and who’s wrong. Right now it’s best to try to reach an agreement and avoid that fight.

      • Brocktoon

        But…we’ve already halted al building for the last year. “We can’t start building because if we do they’ll file an injunction and we’ll have to stop building…”

    • http://www.bleachernation.com Brett

      Could be any number of reasons – perhaps the rooftops’ legal theory isn’t predicated solely on the contract; perhaps there’s a contractual argument we haven’t though of yet; or perhaps the Cubs are simply recognizing that settlement is always preferable to litigation when a major renovation project is on the line.

      • DarthHater

        Perhaps Ricketts is a pansy. ;-)

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

          Totally

  • Spoda17

    I do feel better about all of this knowing this “new” information.

    I have a solution, put up the scoreboard, and on the back put a TV so the rooftops can “view” the field… It doesn’t say it has to be “live.” Hell, if the game sucks they can change the channel or something… put on a movie…

  • hansman

    This is what has confused me about law, forever.

    6.5 appears to say that at no point can the Rooftops block what the Cubs did last year with the approvals and the Cubs can’t block the Rooftops from throwing a hissy fit about it.

    I guess I don’t see what it has to do with the actual construction.

  • WavelandWatchdog

    The key section is 8.2, the non-disparagement clause. The cubs screwed up big time when they bad mouthed the Rooftops at the convention. Until that point they hadn’t violated the contract in any way. They did more than just poke the Rooftops in the eye. They gave them legal ground to stand on.

    • http://www.bleachernation.com Brett

      I’m not sure anything the Cubs said at the convention qualifies under that section. I don’t think Ricketts’ Showtime analogy was, on its own, a disparagement, especially within the context of everything else the Cubs said that day (we love our rooftop partners, I like them, we have a good relationship, etc.).

      Even if the rooftops had a claim under that section, it has nothing to do with the signage. It would simply give them grounds to sue for breach of the contract and damages.

      • Patrick W.

        Which makes me wonder why they Cubs wouldn’t just force the Rooftops into requesting a Material Breach of Contract, and pay the damages.

        I guess they know how much they’ve received from the Rooftops over the last 10 years and they can just divide that by 17% (and then subtract 17%) and they know the maximum damages?

        • http://www.bleachernation.com Brett

          Yeah, I have no idea on why that aspect has played out as it has. Seems like getting the renovation underway would have been more valuable than the damages, but maybe not. And maybe if the Cubs believe they can do it in 4 years now, there was no harm in dancing for a year.

          • mr. mac

            Do you think the 5 year plan was a ploy all along, knowing that they could still complete it in 4 years? Interesting if so.

            • http://www.bleachernation.com Brett

              I … don’t. But I’m thinking about it lately.

              • mr. mac

                Right there with you. They should have let us know so we could have been less stressed/obsessed this past year. Maybe next time…

            • hansman

              Going full-on DieHard here…could there have been something about the 10-year mark of that contract that would free up the Cubs ability to proceed with the rest of the stipulations?

              I guess the timing is odd and Patrick’s story below got the wheels a moving.

  • mtcubfan

    Paragraph 9.4 is the interesting paragraph as it requires the non-prevailing party to pay the costs of the arbitration and the fees of the prevailing party. These costs and fees will be significant for both sides. If the position of the Rooftop Owners is as week as it appears from the portions of the contract published so far, I suspect that Rooftop Owners may want to avoid arbitration and instead find a way to seek their remedy in court. However, like Brett has repeated, we still don’t have the full contract, which party drafted the contract, and what were the negotiated intent of the various provisions, so this is just speculation.

    • TulaneCubs

      Agreed. The rooftop owners would be taking on a whole lot of potential costs if they drag this thing all the way through the process. It’s likely that their legal fees + any Cubs legal fees would completely sink many or all of their businesses. I think that’s a big reason why this will never see the courts and will almost certainly be handled in some sort of settlement. The Cubs can absorb the legal fees in this case even if they lose. The rooftops can’t.

  • Patrick W.

    So, has anybody seen this article from 2004? Has it been referenced before? I apologize if it has:

    http://sports.espn.go.com/espn/print?id=1706351&type=story

    One thing caught my eye:

    “Tunney told The Tribune that if the Wrigley bleacher expansion is completed in the next eight years, according to the agreement, the Cubs would have to compensate those rooftop owners whose views were obstructed.”

    So maybe that’s why this all came to a head in 2013?

    Also, based on the math in the article, if the Cubs were to be found in material breach, the damages would be close to $100M.

    • DarthHater

      I doubt that’s the reason for things happening in 2013. The compensation provision in the contract refers specifically to an expansion of bleacher seating that obstructs the rooftops. The Cubs are not proposing any such expansion of seating, so the compensation provision would not apply to this proposal, even if the current year was 2011.

      • Patrick W.

        You are correct.

    • http://www.bleachernation.com Brett

      But they did a bleacher expansion in 2005-06 …

      • Patrick W.

        That didn’t block views in the way the new renovation would, right? Also it was just 50% reimbursement of the royalties from the effective date to the date of the expansion, so if they signed the agreement in 2004 and they expanded in 2005/06, they only had to give affected RTO’s 50% of 17% of the RTO’s revenue for 1 or 2 years. Let’s say that’s half the RTO’s which would be $1M in royalties paid so maybe $500K to $1M refunded. Unless I’m wrong.

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