The Art Modell Law: The Paper Tiger That Won’t Stop the Browns from Moving to Brook Park

With members of Cleveland’s City Council and Dennis Kucinich talking about it, we thought it a good time to take a look at Ohio’s “Art Modell Law” and see if it can stop the Cleveland Browns from moving to Brook Park, Ohio–just a few minutes outside of downtown Cleveland.

The Art Modell Law was passed by the Ohio General Assembly after the original Browns team was moved to Baltimore by its then owner Art Modell.  Ohio Revised Code § 9.67 (The Art Modell Law) states:

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:

(A) Enters into an agreement with the political subdivision permitting the team to play most of its home games elsewhere;

(B) 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.

The law’s application to the Browns leaving for Brook Park is problematic on a number of levels.  First off, a look at the Keycite and Shepard’s report for the ORC section shows few citing references and no cases that have given an in-depth analysis of the code section or a ruling on its constitutionality.

There is a question of whether the law can survive a test of its constitutionality.  Article I, Section 8 of the U.S. Constitution gives Congress the power to regulate commerce between states, foreign nations, and Indian tribes.  The Dormant Commerce Clause is an implied prohibition on states passing laws that discriminate against or unduly burden interstate commerce. The Supreme Court has articulated two principles that guide its analysis of the Dormant Commerce Clause:

• States cannot discriminate against interstate commerce, with some exceptions.
• States cannot take actions that are facially neutral but unduly burden interstate commerce.

Since the NFL is a league with franchises across the United States, one could argue that the prevention of the move could unduly burden the league’s interstate commerce by requiring a team to stay in a less profitable location.  Furthermore, if the law is upheld it could be a basis for other such restrictions in other jurisdictions further limiting interstate commerce.

Analyzing the text of the statute also shows the vagueness of the law.  The language in subsection B “gives the political subdivision or any individual or group of individuals who reside in the area the opportunity to purchase the team” is vague on its face.  The Browns have received public funding for their stadium from both the City of Cleveland and Cuyahoga County so there are two political subdivisions at issue.  Furthermore, what exactly does “reside in the area” mean?  Many Cleveland State University students and employees reside in the area—that is Northeast Ohio but not in Cleveland or Cuyahoga County proper.

Finally, the Art Model Law only states that those who reside in the area be given an opportunity to purchase the team.  An opportunity to purchase however does not guarantee the sale so it really seems like a hollow law, a paper tiger if you will.

Although there will continue to be plenty of bluster from our local politicians about using this law to stop the Browns move, it is more likely that the move won’t happen because the team either doesn’t get financing for the Brook Park location or comes to an agreement with the City of Cleveland.