CLEVELAND — Cleveland Mayor Justin Bibb says the city’s legal fight over the Browns’ departure for Brook Park isn’t over yet, despite interference from state lawmakers.
The city’s lawyers are still trying to make their case in Cuyahoga County Common Pleas Court, where they claim the Browns are violating terms of their lease at city-owned Huntington Bank Field by negotiating to leave for the suburbs.
Meanwhile, a local law professor is raising questions about the General Assembly’s recent move to change the rules of the game by amending the wording of a state law – the so-called Modell law – that’s at the heart of this off-field battle.
“People are supposed to know what laws apply to them. And the legislature’s just not simply supposed to be able to switch around the law anytime that they want to alter the outcome of litigation in the courts,” said Eric Chaffee, a professor at Case Western Reserve University’s school of law.
“There’s significant doubt that this particular amendment to the Modell law, in fact, is legally enforceable,” he added. “It might be. But it’s gonna need to be tested in court.”
During an interview Wednesday, Bibb said he’s “crystal-eyed” about the path ahead.
Republican state lawmakers recently signed off on a $600 million grant for the Brook Park stadium as part of a mammoth spending bill. And Haslam Sports Group, which owns the Browns, bought the 176-acre site earmarked for a new stadium district in late June.
Lawmakers also made a last-minute change to the Modell law, which was enacted to make it harder for professional sports teams to leave taxpayer-supported facilities. That law is colloquially named for Art Modell, the former Browns owner who moved the original team to Baltimore in the 1990s.
The General Assembly tweaked the wording of the law so that its requirements – for a sports team to either get its home community’s permission to move or provide the city or local investors with a chance to buy the team – only apply to out-of-state relocations.
RELATED: Lawmakers add change to Modell law to state budget, aiding Browns move to Brook Park
The updated language, which will take effect in late September, also says the end of an existing lease frees up a team to leave a publicly subsidized facility for another Ohio site. The legislature made that change retroactive, so it will impact existing contracts.
Bibb called Republican lawmakers’ maneuvers “disgusting and unfortunate.”
Still, Cleveland Law Director Mark Griffin says there are reasons not to give up.
“We’re going to fight every battle that we can to protect our taxpayers,” he said.
'Incentive to keep the litigation going'
Chaffee said none of the city’s claims are a touchdown. But there’s room to argue.
And litigation isn’t just about keeping the Browns on the Downtown lakefront, where their lease ends in early 2029. The city’s lawsuit is also about leverage, as the team looks for a smooth path to Brook Park.
“The city has incentive to keep the litigation going until some sort of settlement’s reached or, ultimately, there’s an outcome in court,” Chaffee said.
Asked whether there’s a point where the cost of the legal bills eclipses the potential upside for taxpayers, Bibb said the city “will continue to be pragmatic in our approach.”
The mayor said “no conversations have been had” with Haslam Sports Group about a potential exit deal, including who would pay to tear down the existing stadium.
“It’s my hope that the Haslams will be good corporate citizens and ensure that there is a very quick and fast demolition of that stadium,” Bibb said. “Because as soon as they go to Brook Park and play their last game, I want us to be moving forward on accelerating lakefront development.”
A City Hall spokesman said that Haslam Sports Group has not approached the Bibb administration to ask for a lease extension, either, to allow for more time to finish the Brook Park project. The team aims to break ground early next year and to move into the new, $2.4 billion stadium in time for the 2029 NFL season.
The Browns didn't respond to a request for comment on the status of the litigation and the city's claims.
'A landlord-tenant dispute'
The Browns sued the city of Cleveland in federal court in October, challenging the constitutionality of the Modell law and arguing the law did not apply to the team’s planned move to a neighboring suburb after the end of a longstanding lease.
RELATED: Browns sue city of Cleveland over Modell law as stadium battle heats up
The city filed its state court lawsuit against Haslam Sports Group in January, saying the Browns were flouting the Modell law and already violating their lease.
RELATED: 'You can't take the money and run': City of Cleveland sues the Browns over Modell law
After the legislature changed the Modell law, a judge pressed pause on the federal court case. On July 1, the city’s lawyers said that makes the state court case more urgent.
“If it were not obvious before, it is now,” Justin Herdman of the Jones Day law firm wrote in a court filing. “This Ohio action, focused on the Browns’ breach of their lease, is the only way to resolve the claims between these parties and provide the much-needed finality that both parties seek.”
The city argues that the Browns violated the original Modell law – and, in turn, ran afoul of lease requirements to follow state laws. Herdman and his team also say the lease precludes the Browns from pursuing a move while they’re still under contract.
The city is pointing to a section of the lease that talks about the team’s obligations. That language says that, throughout the lease term, the Browns must “hold, maintain and defend” their rights to play pro football in Cleveland – and not negotiate with anyone in a way that will cause those rights to be lost "or transferred, relocated or otherwise moved.”
The lease goes on to say that the Browns shall not “modify the franchise” to allow the team to play its home games “in any other city or location.”
During a state court hearing last month, Herdman described the city’s lawsuit as “a landlord-tenant dispute.” And, he added, “there is a Modell component to it, of course.”
RELATED: Lawyers for the Browns, Cleveland face off during first court hearing in Modell law fight
Lawyers for the Browns, meanwhile, said the city is grasping at straws.
“You’ve heard, over and over again, from the city that the Browns are in breach of their lease,” William Savitt, an attorney for the team, told Cuyahoga County Common Pleas Court Judge Lauren C. Moore. “We’re trying to sort that out.
“The Browns have a lease. They have to pay rent. The Browns are paying rent. The Browns have upkeep obligations. They are meeting their upkeep obligations. The Browns are obligated to play all their home games in Huntington Bank Field. They are playing all their home games in Huntington Bank Field.”
And he said Haslam Sports Group intends to honor that lease until the end. “(They) will not do what Art Modell did,” Savitt added.
'Just piling on'
Chaffee said it’s hard to say whether the language in the lease is enforceable. You can put anything in a contract, but that doesn’t mean it will hold up in court, he said.
“This will have to be litigated … but it does feel like it’s just piling on, on top of the Modell law,” he said.
But he won’t be surprised to see pushback over how and when lawmakers changed the Modell law, in a move that Republican leaders couched as clarifying the law’s intent.
“There’s a big question of whether or not you’re allowed to do that during a pending lawsuit,” Chaffee said. “And there are a bunch of different constitutional issues, in fact, that may get in the way of actually having the state legislature interfere with the lawsuits.”
Those issues involve language in the Ohio Constitution that includes protections for due process (evenhanded application of laws) and home rule (the power of municipalities to govern themselves). There’s also the question of whether a new law, or changes to a law, can apply retroactively.
In a recent letter to the city, former Cleveland Mayor Dennis Kucinich, who drafted the Modell law as a member of the Ohio House, made similar points.
On July 3, he filed a support letter in the city’s Modell state court case.
“We respect Mayor Kucinich, but we already have this under control,” Griffin, the law director, said Wednesday. “We’re in court. We’re working with Jones Day. So we’ve got it handled.”
He reiterated that there’s still a legal path for the city to follow. “We see it both under the lease but also under the original Modell law, as well,” Griffin said.
Bibb said Cleveland taxpayers have spent almost half a billion dollars since 1999 on the lakefront stadium. He’s not willing to let that investment turn into rubble without a fight.
But Chaffee said he won’t be shocked to see a settlement in the next few months.
Otherwise, he said, “this could get really expensive. There’s gonna be a cost-benefit analysis on both of the parties here, as to what to do next.”
This story has been updated with the correct spelling of CWRU law professor Eric Chaffee's last name.
