Government

Judge Spanks Kraken Lawyer In Disastrous Hearing On MLB All Star Game

Holy train wreck, Batman!

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(Image via Getty)

Yesterday’s hearing in the doomed effort to get the All Star Game moved back to Atlanta was truly spectacular — as one would expect when the issue is a preliminary injunction based on the theory that Major League Baseball is a government entity depriving small business owners of their constitutional right to sell beer to baseball fans the second weekend in July. No, seriously.

But watching Kraken lawyer Howard Kleinhendler get taken apart by U.S. District Judge Valerie Caproni surpassed all expectations. Ten out of ten, would visit again! It was like watching an orca devour a particularly obnoxious seal who keeps interrupting to shout out random snippets from the Law of the Sea. All that was missing was David Attenborough somberly intoning, “Sadly now there can be but one outcome.”

After Georgia passed its controversial “election security law,” MLB announced on April 2 that it was moving the game to Colorado. And a mere eight weeks later, Kleinhendler and his client, the Job Creators Network busted into federal court like the Kool-Aid Man demanding an emergency injunction to return the game to Georgia. But the plaintiff’s tardiness in bringing the claim was the least of its problems yesterday, as Kleinhendler struggled to articulate how exactly his client was injured.

At first, the lawyer pointed to all the ads JCN “had” to take out protesting MLB’s decision. But, as Judge Caproni pointed out, taking out ads and erecting billboards is kind of JCN’s whole schtick. The best Kleinhendler could do was point to an affidavit from a JCN member who hosts a softball tournament every year, and timed it to coincide with the All Star Game this July. According to the affidavit, half the teams dropped out after MLB’s move. Unfortunately, the affidavit failed to explain whether the teams canceled their reservations in protest of Georgia’ election law or because they weren’t going to get to skip out of their own tournament and watch the All Star Game.

Kleinhendler’s effort to assert standing on behalf of “all citizens of Georgia” fared no better. And his contortions aimed at turning the MLB into a state actor because some of the member teams play in state-financed stadiums crashed and burned as well.

“That’s not what that case holds. That case is entirely distinguishable,” Judge Caproni said in exasperation after listening to Kleinhendler rattle off a handful of inapposite citations. Before cutting him off, saying “Assume that you’re going to lose that argument.”

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And although the court never did get to hear his explanation of how the defendant was violating the Dormant Commerce Clause, it was treated to a brand new theory about MLB imposing an illegal pre-clearance requirement on Georgia’s voting laws. Sure, the game was moved after the law was enacted; Atlanta is still home of the Braves; lawmakers were clearly not intimidated, since the statute remains on the books; and MLB is still not a government entity. But still!

For their part, MLB and the Players Association saw no reason to interrupt their enemy in the process of stepping on all the rakes. MLB largely restricted itself to agreeing with the judge and pointing out that the complaint failed to state a claim for any of the various Georgia torts alleged. (Is third party promissory estoppel even a thing?) And MLBPA wondered why it was even in the room, since it has no power to move the game.

After a brief recess, Judge Caproni ruled from the bench. Surprising exactly no one, she refused to issue the requested injunction and set a merits hearing for the first week of July. The game is set for July 13, so … you do the math.

“I would be remiss if I did not point out several other issues with this case,” she warned. “To say that the legal underpinnings of this lawsuit are weak and muddled would be an understatement.”

But Kleinhendler and his client remain undaunted.

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“The judge’s disappointing ruling is just one strike against us, and we are still up to bat, looking to appeal our case to the Second Circuit or directly to the Supreme Court,” JCN’s President Alfredo Ortiz promised. “To be clear, JCN lost on standing; MLB did not win on the merits. By demonstrating clear harm to our members and us as an organization, we believe that the judge erred in her decision, and we do have standing. Yet the muddled debate over standing shouldn’t obscure this case’s merits, which are in our favor.”

Game on, fellas. Swing for the fences!

Job Creators Network v. Office of the Commissioner of Baseball (1:21-cv-04818) [Docket via Court Listener]

Elizabeth Dye lives in Baltimore where she writes about law and politics.

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